FRENCH v NEW ZEALAND POLICE [2019] NZHC 2382

FRENCH v NEW ZEALAND POLICE [2019] NZHC 2382 [19 September 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-367[2019] NZHC 2382BETWEEN ROBERT WAYNE FRENCHAppellantAND NEW ZEALAND POLICERespondentHearing: 19 September 2019Appearances: No appearance for or on behalf of AppellantM Regan for RespondentJudgment: 19 September 2019JUDGMENT OF VENNING JSolicitors: Kayes Fletcher Walker, AucklandCopy to: Respondent[1] On 31 October 2018 the appellant Mr French was convicted of one charge ofassault under the Summary Offences Act 1981 and one charge of behaving in athreatening manner. He was ordered to pay restitution of $100, pay Court costs andto come up for sentence if called upon within six months.[2] On 19 November 2018 Mr French appealed to this Court from the convictionand sentence. Mr French's appeal has been called in Court this afternoon for asubstantive hearing. There is no appearance by Mr French or on his behalf.[3] The appeal has been listed for call before the Court on a number of previousoccasions. Previous fixtures allocated for the hearing of the appeal have been vacated.Mr French was previously represented by counsel. On 27 March 2019 counsel wasgranted leave to withdraw. After a number of adjournments at pre-hearing conferencesa fixture was allocated for 10 June 2019. That fixture was adjourned and rescheduledto 9 July 2019. That 9 July fixture was also adjourned at Mr French's request. JusticeLang then set the appeal down for hearing on 19 August 2019 and made timetableorders directing Mr French to file and serve submissions by 5 August. Mr Frenchfailed to file submissions in accordance with the timetable. On 15 August Whata Jamended the timetable and extended the time for Mr French to file his submissions to15 August. He confirmed the fixture for 19 August 2019 at 2.15 pm and noted:That fixture is confirmed irrelevant of whether submissions are filed on time.However, failure to file submissions in advance may provide strong reasonsto dismiss the appeal.[4] Late on the afternoon of 16 August Mr French filed an application foradjournment. On 19 August 2019 at a telephone conference before Davison J theJudge noted that Mr French had sought an adjournment of the fixture for three monthsto recover from an illness. Justice Davison directed Mr French to file and serve amemorandum attaching a detailed medical certificate by 5.00 pm, 2 September 2019.The Judge allocated a review conference at 9.00 am on 6 September 2019.[5] Mr French failed to comply with the direction of Davison J to file a detailedmedical certificate by 5.00 pm, 2 September. He has failed to comply with theprevious directions of the Court as well.[6] When the Registrar sought to contact Mr French on Thursday, 5 September2019 to confirm the telephone conference at 9.00 am the next day Mr French advisedthe Registrar that he required matters to be put in writing and then hung up.[7] The Court convened a telephone conference at 9.00 am on 6 September. MrRegan appeared for the Police. Mr French's number was called. There was noresponse. The phone was not picked up.[8] The Court set the appeal down for hearing at 2.15 pm today. The Courtrecorded it seemed pointless to make further directions to require Mr French to fileand serve submissions. The Court directed that in the event Mr French did not appeartoday the Court would deal with the appeal in his absence and that his appeal wouldbe dealt with on 19 September at 2.15 pm. A copy of that minute and the directionswere sent to Mr French.[9] Mr French subsequently arranged for a doctor, Dr Doering, to send an email tothe Court attaching a medical certificate. The email was dated 13 September at2.15 pm. The certificate is itself dated 2 September. The medical certificate simplystates:The above patient was seen and examined by me on 02 September 2019 andin my opinion he is medically unfit for court appearance from 02 September2019.It is expected that Robert will improve.He will be reassessed again in 6 weeks regarding his fitness for courtappearance.[10] The Court responded to that email with a further minute dated 13 September2019. That minute noted:[3] That very general opinion is entirely unsatisfactory and is inadequateas a basis for a further adjournment of Mr French's long delayed appeal.[4] If Mr French does not appear on Thursday, 19 September at 2.15 pmor arrange an appearance on his behalf the Court will determine the appeal onthe papers.[11] The medical certificate proffered by Mr French did not comply withDavison J's directions that it address and describe Mr French's present medicalcondition and health. It also did not address why Mr French was apparently able toattend a doctor in Titirangi but could not attend Court. Nor did it address the issue ofwhen Mr French might be able to attend Court.[12] In response to the minute from the Court confirming the fixture would proceedtoday Mr French then sent a further document to the Court styled as a second affidavit.In that he sought a further adjournment and also sought a copy of the hard disk of theaudio transcripts of previous hearings in the District Court. As noted, Mr French hasnot appeared this afternoon to support his appeal. Mr Regan for the Police opposesany further adjournment.[13] Given the background to this case and the matters described above I am notminded to adjourn this case further. It is not in the interests of justice overall for thisappeal to remain before the Court and remain undetermined. Mr French has had ampleopportunity to present his case and to make his submissions. The application foradjournment is declined.[14] I turn to the background facts relating to the offending of which Mr French wasconvicted. I take them from the decision of Judge C J Harding of 31 October followingthe hearing in the District Court at Manukau on 31 October 2018.1[15] At a little before one in the afternoon of 27 March 2018 the complainant, MrRaine, was in a Manukau shop with his wife and 14 year old son when Mr French sawhim. Mr French went up to him. Mr French was of the view that Mr Raine had stolena trailer from him about 15 years ago.[16] Mr Raine's evidence was that he put out his hand to shake Mr French's hand,he having known Mr French through his father for 20 or 25 years, but that Mr Frenchgrabbed his hand and accused him of stealing the trailer and began to swear at him.Mr Raine said that when he asked what this was about Mr French effectively pushedhim outside, refusing to let go of his hand, and outside he was pushed in the chest andthreatened by Mr French with Mr French refusing to let his hand go. Mr Raine'sevidence was that some skin was torn off his hand in the process.1 New Zealand Police v French [2018] NZDC 27329.[17] Mr Raine also described Mr French as putting his finger to his throat, drawingit across and said that Mr French threatened to shoot him, to the point where he feltvery uneasy and felt that things had escalated to quite a bad position. He describedMr French as right in his face, pushing his chest with his hands and the longer it wenton the worse he felt about how it would end.[18] Mr Raine's version was substantially supported by his wife, June Carter, whowas there at the time. She described Mr French grabbing Mr Raine's hand anddragging him out of the shop accusing him of stealing his trailer. She recalled himsaying that he should just kill him and says that Mr French was at the time shakingwith anger and pushing her husband in the chest with his finger several times. Shecalled 111, which led to the police arriving.[19] Constable Renton and Constable Graham attended the scene. ConstableRenton described Mr French as being agitated. Constable Graham spoke to MrFrench, who declined to sign the Constable's notes. While acknowledging that heremonstrated with Mr Raine about the theft of the trailer, Mr French declined to makeany further material comment.[20] Constable Graham said that he then looked at some CCTV footage from theshop.[21] Mr French gave evidence in which he acknowledged having been at the store,said that he had seen Constable Renton and the others and approached them about thetheft. In his version he was asked to take matters outside and he walked outside withMr Raine and Mr Raine's partner followed. He then dealt with the checkout operatorbut denied assaulting Mr Raine in the way Mr Raine and Ms Carter allege.[22] He made no reference to physical contact and said he was concerned about histreatment by the police. In cross-examination he denied speaking loudly to Mr Raineand his wife or abusing them and denied grabbing and not letting go of Mr Raine. Heconsidered he was not being shown the CCTV footage because the incident did nothappen and the officers had conspired to unlawfully arrest him.[23] The issue of the CCTV footage has been raised and discussed at previous callsof this appeal. The Judge recorded "there was a judicial direction some time ago" forthe CCTV footage to be disclosed and if it was not disclosed it was not to be relied onby the prosecution. The CCTV footage has not been disclosed and could not thereforebe relied on by the prosecution. The explanation given for that apparently is thatunfortunately the CCTV footage downloaded onto the disk and kept by the Policeinitially was not the right footage. It was from a different time of the day. This wasnot initially picked up until the file was prepared for the trial and by this time theCCTV footage at the store had been written over. So the CCTV footage was simplynot available either to support the prosecution case or available to Mr French.[24] Relevantly the Judge dealt with the matter properly in the following way in hisjudgment:[17] It is unfortunate that the CCTV footage, whatever it showed, was notavailable so as to enable Mr French to see it, but evidence which might havebeen made available to a Court and which is not produced is simply irrelevantto a judicial determination and the Court is required to make a determinationon the facts which are put before it. The Judge proceeded to deal with the hearing before him on that basis.[25] Another point Mr French raises is he seeks a DVD recording of the varioushearings in the District Court. There were preliminary hearings in the District Courtbefore the prosecution was heard at the substantive hearing before Judge Harding on31 October. Transcripts of those relevant preliminary hearings and of the hearingbefore Judge Harding (both the evidence and the Judge's ruling) have been providedto Mr French on more than one occasion.[26] Recently, in response to a direction by Davison J the Crown collated thematerial yet again and provided signed minutes of Lang J dated 9 July; Whata J dated15 August 2019; Davison J dated 19 August 2019; charging document; records ofhearings in the District Court; the summary of facts; copies of the police officers'notebooks; papers filed by Mr French himself; minute of Judge Bergseng in theDistrict Court on 7 August 2018; transcript of the evidence of the hearing before JudgeHarding; and copies of the Judge's decision on 31 October 2018 and the subsequentsentence imposed on that date.[27] The Court is satisfied that Mr French has been provided with all materialrelevant to the hearings in the District Court and the appeal before this Court.[28] Essentially the prosecution against Mr French was determined by the Judgepreferring the evidence of Mr Raine and his partner Ms Carter as to the incidentinvolving Mr Raine and Mr French to that of Mr French.[29] In his ruling the Judge noted:[18] I found Mr Raine to be relatively understated in his presentation, notprone to exaggeration, straightforward and clear and straightforward in hisanswers in cross-examination. His wife was equally straightforward and clearin her explanations in cross-examination.[30] He also noted there was supportive evidence of a photograph taken by thePolice of Mr Raine's injury but placed little weight on that. He also noted that theofficers' evidence of Mr French's agitated state was consistent with the evidence ofMr Raine.[31] On the other hand, in dealing with Mr French's evidence the Judge said:[20] Mr French, in giving evidence, was markedly less impressive as awitness. He appeared to avoid the key issues, to be reluctant to answerquestions directly in cross-examinationand concluded that:where there are differences between his version of events and that of thecomplainant and his wife I prefer the complainant and his wife.The Judge therefore found the matters proved beyond reasonable doubt.[32] The Judge's conclusion that the charges were proved beyond reasonable doubton the basis of the evidence before him was clearly open to him on the evidence. Thereis nothing in the material before this Court on appeal or anything in the material thatMr French has submitted to the Court which affects validity of that finding.[33] It follows that the appeal must be and is dismissed.__________________________Venning J