FRENCH v NEW ZEALAND POLICE [2020] NZCA 175

FRENCH v NEW ZEALAND POLICE [2020] NZCA 175 [21 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA540/2019[2020] NZCA 175BETWEEN ROBERT WAYNE FRENCHAppellantAND NEW ZEALAND POLICERespondentCourt: Courtney, Ellis and Brewer JJCounsel: J C Harder for AppellantJ E Mildenhall for RespondentJudgment:(On the papers)21 May 2020 at 10 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] In October 2018 Robert French was convicted following a Judge alone trialbefore Judge Harding on charges of common assault and behaving in a threateningmanner.1 On the charge of assault he was convicted and ordered to pay emotionalharm reparation of $100 and court costs of $130. On the charge of intimidation hewas convicted and ordered to come up for sentence if called upon within six months.21 Police v French [2018] NZDC 27329.2 Police v French [2018] NZDC 27466.[2] Mr French appealed his conviction and sentence. He was dilatory inprosecuting the appeal and did not appear on the date eventually allocated for thehearing of the appeal in the High Court, 19 September 2019. After considering thehistory of the appeal, Venning J proceeded to determine that matter and dismissed theappeal.3 Mr French seeks leave to bring a second appeal against conviction only.4[3] The threshold for leave to bring a second appeal is high. Under s 237(2) of theCriminal Procedure Act 2011, this Court must not grant leave for a second appealagainst conviction unless satisfied either that the appeal involves a matter of generalor public importance,5 or that a miscarriage of justice may have occurred or may occurunless the appeal is heard.[4] In this case it is accepted that there is no matter of general or public importancearising from the proposed appeal. The application is advanced on the basis that amiscarriage of justice may have occurred. A miscarriage of justice is something whichhas gone wrong and which was capable of affecting the result of the trial.6 Mr Frenchsays that there may have been a miscarriage of justice because the CCTV footage thatcaptured part of the incident giving rise to the charges was not available at the trial.The trial in the District CourtThe offending[5] The circumstances of the offending, as found by the Judge, were as follows.Mr French approached the complainant, Mr Raine, in a shop. Mr Raine was with hiswife and teenage son. Mr Raine put out his hand to shake Mr French's hand.Mr French grabbed Mr Raine's hand and accused him of stealing a trailer from himsome years previously. Mr French pushed Mr Raine out of the shop. Outside the shopMr French pushed Mr Raine in the chest and made a threatening gesture of drawinghis finger across his throat and threatened to shoot him.3 French v Police [2019] NZHC 2382.4 Criminal Procedure Act 2011, s 237.5 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].6 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [31].[6] Ms Carter was sufficiently concerned about Mr French's agitated state that shecalled the police. The police also described Mr French as being initially agitatedbefore calming down. The police took a photograph of a small abrasion on Mr Raine'shand, said to have been caused when Mr French grabbed the hand.[7] The police also checked the CCTV footage from the shop. After viewing theCCTV footage Mr French was arrested.The CCTV footage[8] The store manager uploaded a copy of the CCTV footage onto a police devicebut it was not provided to Mr French during discovery. In June 2018, at Mr French'sappearance for plea, the police were directed to disclose the CCTV footage. That wasnever done.[9] At a pre-trial hearing in August 2018 Judge Bergseng issued a minute regardingthe delays in disclosure by the police and directing that the police either disclose aviewable copy of the CCTV footage, failing which "they are prevented from relyingon that evidence at the Judge alone trial".7[10] The footage was never produced.8 The trial Judge referred to it in his decision:9It is unfortunate that the CCTV footage, whatever it showed, was not availableso as to enable Mr French to see it, but evidence which might have been madeavailable to a Court and which is not produced is simply irrelevant to a judicialdetermination and the Court is required to make a determination on the factswhich are put before it.The Judge alone trial[11] Mr French was unrepresented at trial. He gave evidence. The Judgesummarised his account as follows:107 Police v French DC Manukau CRI-2018-092-3485, 7 August 2018 at [4].8 The Crown submissions on appeal contain an explanation to the effect that once the police hadconverted the footage into a viewable format they discovered that it was from the wrong time ofday and did not cover the relevant period. The original footage viewed by the police on the daywas no longer available because it had since been overwritten.9 Police v French, above n 1, at [17].10 At [14][16].[14] He acknowledged having been at the store, said that he sawConstable Renton and the others and approached them about the theft. It washis version that he was asked to take matters outside and that he walkedoutside with the others following. The checkout operator came out and hegave her $4 he had had in his hand and a packet of tea that he was going tobuy and she returned to the store, inferentially rang it up and came back withthe tea and possibly some change.[15] Mr French's evidence was that Mr Raine said he still had the trailerand somebody said it could be collected, and that from Mr French'sperspective he enquired as to the address and found that that had changed andthen went into the store to get a pen to write the new address down to do that.He said that when he returned Mr Raine said that he, Mr French, was nothaving the trailer back, said that Mr French had been threatening him and thatthe police would be called. In due course the police were called and arrived.[16] Mr French in his evidence-in-chief made no reference to physicalcontact and was concerned about his treatment by the police substantially afterthe events and after his arrest. In cross-examination he denied speaking loudlyto Mr Raine and his wife or abusing them. He denied grabbing and not lettinggo Mr Raine and said that he simply walked outside with them following. Itwas his evidence and view that he had not seen the CCTV footage because theincident did not happen and that the officers conspired to unlawfully arresthim. [12] The Judge ascribed little weight to the abrasion on Mr Raine's hand. Overallhe preferred the account given by Mr Raine and Ms Carter, whom he found to bestraightforward witnesses. He acknowledged that there was not "complete unanimity"between Mr Raine and Ms Carter as to how Mr French had got outside; Mr Rainedescribed being pushed whilst his wife, Ms Carter, described him being dragged.11But the Judge was satisfied that Mr French had forced Mr Raine outside.The first appeal[13] Although Mr French filed his appeal promptly following his conviction he wasslow to prosecute it. After several adjournments the matter was set down for hearingon 19 September 2019. Mr French did not appear.[14] Venning J reviewed the procedural history of the appeal which can be broadlysummarised as follows:(a) On 27 March 2019 Mr French's counsel was granted leave to withdraw.11 At [10].(b) After a number of adjournments at pre-hearing conferences a fixturewas allocated for 10 June 2019. That fixture was adjourned to9 July 2019 at Mr French's request.(c) The 9 July fixture was adjourned at Mr French's request. A new datewas allocated of 19 August 2019 and Mr French was directed to filesubmissions by 5 August 2019.(d) Mr French failed to file submissions as required. On 15 August timefor filing submissions was extended and the 19 August 2019 fixtureconfirmed, with a direction by Whata J that it proceed regardless ofwhether the submissions had been filed.(e) On 16 August 2019 Mr French filed an application for adjournment ofthe fixture. On 19 August 2019 there was a telephone conferencebefore Davison J. The Judge noted that Mr French had sought athree-month adjournment because of illness and directed that he file amemorandum with a detailed medical certificate by 2 September 2019.(f) Mr French failed to file the medical certificate as required. He failedto respond to a telephone conference convened for 6 September 2019.(g) The appeal was set down for hearing on 19 September 2019. Directionsthat the appeal would proceed in Mr French's absence if he did notappear were sent to him.(h) On 13 September 2019 Mr French emailed a medical certificate (dated2 September 2019) to the Court. It contained no details of Mr French'sillness, merely stating the he "is medically unfit for court appearancefrom 2 September 2019", that he was expected to improve and wouldbe reassessed again in six weeks.(i) Mr French was advised that the medical certificate was inadequate asthe basis for an adjournment and that the appeal hearing would proceedas scheduled, if necessary on the papers in the event Mr French did notappear.(j) Mr French sought a further adjournment and requested the audiotranscript of the District Court hearings.[15] In these circumstances Venning J concluded that:12 It is not in the interests of justice overall for this appeal to remain beforethe Court and remain undetermined. Mr French has had ample opportunity topresent his case and to make his submissions. The application foradjournment is declined.[16] Venning J then reviewed the facts as they had been found in the District Courtand the account that Mr French had given in the District Court. He referred to theissue of the CCTV footage and to the way in which the District Court Judge had dealtwith it. Venning J concluded that:13Essentially the prosecution against Mr French was determined by the Judgepreferring the evidence of Mr Raine and his partner Ms Carter as to theincident involving Mr Raine and Mr French to that of Mr French.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 theevidence. There is nothing in the material before this Court on appeal oranything in the material that Mr French has submitted to the Court whichaffects validity of that finding.Application for second appeal[17] Mr French's complaint is that the failure of the police to produce the CCTVfootage was a breach of ss 13, 14 and/or 30 of the Criminal Disclosure Act 2008 andthat, as a result of the police not securing and disclosing the footage, his fair trial rightswere breached. The fact that evidence is not available at trial will not necessarilyrender a trail unfair but there may be circumstances in which it does have that effect.The issue was considered by this Court in R v Harmer, an appeal against a murderconviction in which the complaint was that physical evidence relating to the crime12 French v Police, above n 3, at [13].13 At [28] and [32].scene had been destroyed. 14 The Court summarised the circumstances in which thelack of evidence might lead to an unfair trial:[91] In our view there are two relevant considerations, namely whether theevidence has been lost because of acts or omissions by the police involvingbad faith, and whether it is probable that the lost evidence would have been ofreal assistance to the defence in the circumstances of the particular case. Theemphasis, we consider, should be upon the need for a showing by the accusedor convicted person that it is more probable than not that the lost evidencewould have been of real benefit to the defence because it would have createdor contributed to creating a reasonable doubt. That is after all the fundamentalquestion. The characterisation of the conduct of the police in this regard willnot be determinative save that, if it appears that they were motivated by adesire to avoid having the evidence before the court or otherwise acted in badfaith, it may readily be inferred that the evidence would have been helpful tothe defence. But, in the absence of such deliberate conduct or other bad faithby the police – which is the position in this case – the concern should be withthe effect on the defence of the absence of the evidentiary material rather thanwith whether the plaintiff have been negligent. The particular significance ofthe missing evidence to the defence will necessarily have to be considered inlight of all the available evidence. When, as here, the issue arises on an appealfrom a conviction the ultimate question will be whether the unavailability ofthe evidence to the defence appears to have given rise to a miscarriage ofjustice.[18] Harmer was applied in Beattie v Police, a case with some factual similaritiesto the present case.15 In Beattie the appellant appealed successfully against hisconviction for assaulting a female. Mr Beattie was alleged to have rubbed the shoulderand arm of a teenage girl sitting with her mother outside a takeaway bar. The evidenceagainst him came from the complainant and her mother. After being arrested, and onthe way back to the police station a police officer referred to the fact that there wasCCTV covering the street. However, the footage was never obtained and by the timeof trial was unavailable. In cross-examination the officer said that he had viewed thatfootage briefly to confirm that the defendant was the correct person and had not seenany assault.[19] The Court considered that there was no basis for a finding of bad faith on thepart of the police in failing to obtain the footage because the officer had never beenasked why he did not secure the CCTV footage. Nor could Mr Beattie show that, moreprobably than not, the footage would have been of real benefit to him in creating a14 R v Harmer CA324/02, 26 June 2003.15 Beattie v Police [2013] NZHC 1781.reasonable doubt. But the Court did see as relevant, and helpful to Mr Beattie, the factthat the officer had not seen any physical contact between Mr Beattie and thecomplainant during his brief viewing of the footage. Given the low level ofseriousness of the offending and the disproportionate time that matter had taken up,the Court declined to remit the matter to the District Court for consideration of the badfaith issue and simply quashed the appeal.[20] This case is different from Beattie in a significant way. Unlike Beattie, theofficer claimed to have seen the assault when he viewed the footage at the shop. Inhis evidence-in-chief, Constable Renton described attending the scene and having astaff member of shop play the CCTV footage to him. When asked what he had doneas a result of viewing the footage, he said:I spoke with Mr French and I put it to him that I'd reviewed the CCTV footageand could see that an assault had taken place[21] Not only is there is no basis on which to conclude that there was bad faith onthe part of the police in not securing the CCTV footage, there no basis on which toconclude that the footage would, in fact, have been helpful to Mr French inestablishing a reasonable doubt. It can reasonably be assumed that at any retrialConstable Renton would give the same evidence. Given the Judge's acceptance ofMr Raine's account and that of his wife and the fact that the constable said that thefootage showed as assault and that his actions immediately afterwards were consistentwith that, there is no reasonable possibility of a different outcome.Result[22] The application fails by a significant margin to meet the threshold needed fora second appeal. The application for leave to appeal is accordingly declined.Solicitors:Crown Law Office, Wellington for Respondent