SNOWDEN v NEW ZEALAND POLICE [2022] NZCA 393

SNOWDEN v NEW ZEALAND POLICE [2022] NZCA 393 [24 August 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCDEURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA7/2022[2022] NZCA 393BETWEEN WILLIAM SNOWDENApplicantAND NEW ZEALAND POLICERespondentCourt: Katz, Thomas and Woolford JJCounsel: Applicant in personM R L Davie and H S Cunningham for RespondentJudgment:(On the papers)24 August 2022 at 11:00 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] Mr Snowden was convicted in the District Court of one charge of burglary andone charge of indecent assault.1 His subsequent appeal against conviction to the1 Police v Snowden [2021] NZDC 2799 [DC conviction judgment].High Court was dismissed.2 Mr Snowden, who is self-represented, now seeks leaveto bring a second appeal.3Background[2] The charges against Mr Snowden arose out of an incident where Mr Snowdenentered the complainant's unit during the night while she was asleep.The complainant's evidence was that she awoke to find Mr Snowden between her legs,stroking her leg[3] Following a one-day Judge-alone trial, Judge A-M J Bouchier foundMr Snowden guilty of burglary and indecent assault. He was subsequently sentencedto two years and ten months' imprisonment.4[4] Mr Snowden's appeal to the High Court was dismissed by Wylie J.5 The issuesMr Snowden wishes to raise in his proposed second appeal largely mirror the issuesthat were advanced in his first appeal (as discussed further below).Leave principles[5] Leave is required for a second conviction appeal. Leave to appeal must berefused unless the Court is satisfied that one or other of the two grounds set out ins 237(2) of the Criminal Procedure Act 2011 is established, namely that:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless theappeal is heard.[6] The issues raised by the proposed appeal are case-specific. Accordingly, weagree with the Crown's submission that the "general or public importance" limb ofs 237 is not engaged. The leave application accordingly turns on whether s 237(2)(b)2 Snowden v Police [2021] NZHC 3491 [HC judgment].3 Although Mr Snowden's application for leave refers to both his conviction and his sentence, it isapparent from his submissions that his intention (if granted leave) is to only advance a convictionappeal (as he did in the High Court). We proceed accordingly.4 Police v Snowden [2021] NZDC 2830 [DC sentencing notes].5 HC judgment, above n 2, at [40].is satisfied, namely whether a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[7] As this Court confirmed in McAllister v R, although the miscarriage test willextend to arguable errors by the court below, not every such error will give rise to amiscarriage of justice.6 The phrase "miscarriage of justice" is not defined in s 237.However, the definition of that phrase in s 232,7 while not apt to determine whetherall applications for a second appeal are meritorious, will often be relevant to anapplication for leave to appeal against conviction.8 Section 232 defines a miscarriageof justice as meaning "any error, irregularity, or occurrence in or in relation to oraffecting the trial" that:9(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.The proposed grounds of appeal[8] Mr Snowden submits that a miscarriage of justice has occurred (or may haveoccurred) for a number of reasons, which appear to fall into three broad categories:(a) he did not have adequate time to prepare a defence;(b) his health condition (head/brain injuries) was not sufficientlyaccommodated at trial; and(c) the District Court Judge erred in her assessment of the evidence.6 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37]–[38].7 Section 232(2) of the Criminal Procedure Act 2011 sets out the grounds for allowing a first appeal.Section 240(2) provides that those grounds also apply to a second appeal, in the event that leaveto bring a second appeal is granted.8 McAllister v R, above n 6, at [38].9 Criminal Procedure Act, s 232(4).Miscarriage of justiceInsufficient time to prepare a defence[9] In general terms, Mr Snowden clearly had adequate time to prepare a defence.The case was not complex and there was almost two years between arrest and trial.[10] Mr Snowden's argument is somewhat more nuanced than that, however.He says that he was not given sufficient time to prepare a defence because thecomplainant made some statements at trial that had not been included in her policestatement (or which were inconsistent with what she told police) and/or which had notbeen included in the police summary of facts. Mr Snowden refers, for example, to thecomplainant's evidence that Mr Snowden was lying on his stomach on his elbowsbetween her legs; that he stroked the inside of her right leg; that he was holding a rag;and that the complainant was taking sleeping pills on the night the offending occurred.[11] It is extremely common for a complainant's evidence at trial to differ in somerespects from their earlier police statement (on which the summary of facts is alsooften based) or for their evidence at trial to include additional material. Suchdifferences or inconsistencies are routinely seized upon by defence counsel (asoccurred here) as illustrations of the complainant's unreliability, lack of credibility, orboth.[12] Occasionally, some significant new evidence emerges at trial that requires anadjournment to enable the defendant to take advice or conduct his or her own inquiries.The complainant's evidence here did not fall into that category. The mattersMr Snowden refers to are largely matters of detail, rather than substantively newallegations. Mr Snowden was represented at trial by competent counsel who clearlydid not feel the need to seek an adjournment in relation to any of the matters nowidentified by Mr Snowden.10 It is apparent from the notes of evidence that counselconducted a careful cross-examination of the complainant. This included questioningher on several of the matters now raised by Mr Snowden. Mr Snowden did not file an10 This was the finding of the High Court on Mr Snowden's first appeal: see HC judgment, above n 2,at [17]–[34]. We see no basis for departing from this finding.affidavit for the purposes of his first appeal or give evidence at the High Court appealhearing.[13] In our view it is not seriously arguable that a miscarriage of justice may haveoccurred on the basis that Mr Snowden had "insufficient time to prepare a defence" inrelation to evidence that was given at trial.Mr Snowden's health condition[14] In his first appeal, Mr Snowden submitted that trial counsel had erred by failingto inform the District Court of Mr Snowden's history of brain injuries, failed to providethe Court with a report prepared by a health assessor under s 38 of the CriminalProcedure (Mentally Impaired Persons) Act 2003 and did not request that Mr Snowdenbe aided by a communications assistant.11 In short, it was Mr Snowden's position thatinsufficient accommodations had been made at trial for his health condition, and thatthis had potentially given rise to a miscarriage of justice.[15] Wylie J rejected this appeal ground for the following reasons:[28] Mr Snowden also submits that Mr Meyer did not advise the Courtabout the difficulties he faces as a consequence of his head injuries or engagea communications assistant for him.[29] At trial, Mr Snowden gave evidence about his head injury from 2018and its effects on his physical abilities, memory loss, processing ability andnerve issues. The Judge was aware of the situation.[30] Further, Mr Meyer deposed that the Court was advised that a s 38report had previously been sought. He said that a report had been completedand provided to the Court. A copy of this document is available. It is a letterdated 23 January 2019 from a forensic Court liaison nurse – not a s 38 report.It notes Mr Snowden's head injuries but includes no recommendations. Twos 38 reports were prepared to assist the Court in determining whetherMr Snowden was fit to stand trial on different charges (unrelated to theindecent assault and burglary offending). One was dated 11 October 2019 andthe other 28 October 2019. Both concluded that Mr Snowden has somesymptoms of brain damage but retains an adequate enough understanding ofCourt procedures that he was likely to be found fit to stand trial. Bothsuggested that the Court should consider allowing regular breaks and givingMr Snowden additional time to discuss matters with his lawyer. Neitherrecommended a communications assistant. In so far as I am aware, neither ofthose reports were before the Judge.11 At [11(a)].[31] Mr Meyer deposed that, in his judgement, Mr Snowden was able toexpress himself and that he did not require a communications assistant.The notes of evidence do not suggest that Mr Snowden had any difficulty.He appears to have been able to recall matters of fine detail readily. It was ashort trial – one day – before an experienced Judge. Mr Snowden was not inthe witness box for very long – the transcript of his evidence runs to only10 pages. The Judge was aware of Mr Snowden's injuries and Mr Meyer saysthat he told her that s 38 reports had previously been sought. She did not feelit necessary to arrange a communications assistant.[32] There was no trial counsel error in this regard and no miscarriage ofjustice.[16] In his proposed second appeal, Mr Snowden intends to advance similararguments to those advanced in the High Court. He submits that Wylie J erred inconcluding that a communications assistant was not needed. On the contrary, he says,such an assistant was required to not only assist him in Court, but also to help him tounderstand trial counsel and his previous legal aid lawyers. Mr Snowden describesthis as his primary argument on appeal. He says that, subsequent to his trial in thisproceeding, a communications assistant was appointed by another District Court Judgeto assist him in relation to other criminal charges he is facing. (We do not have a copyof that decision but proceed on the basis that what Mr Snowden says is correct).[17] Section 80(1) of the Evidence Act 2006 enables the appointment of acommunications assistant to enable a defendant to understand the proceeding and togive evidence. Pursuant to s 81(1), a communications assistant need not be providedto a defendant, however, if the Judge considers that the defendant:(a) can sufficiently understand the proceeding; and(b) if the defendant elects to give evidence, can sufficiently understandquestions put orally and can adequately respond to them.[18] This Court held in Mathews v R that, when assessing whether the absence of acommunications assistant has compromised a defendant's fair trial rights, the Courtshould ask:12(a) Did the absence of a communications assistant prevent [the defendant]from sufficiently understanding the trial process or any part of it?12 Mathews v R [2019] NZCA 131 at [26].(b) If so, is there a real risk that this impeded the conduct of [thedefendant's] defence?[19] It does not necessarily follow from the fact that a communications assistant hasapparently been appointed in other, subsequent, proceedings that one was requiredhere. Obviously, each situation must be considered on its own merits. A wide rangeof factors may impact on the need for a communications assistant. These include thatsome proceedings are more complex than others, and that a person's mental healthcondition may change over time.[20] Here, there is nothing to suggest that Mr Snowden did not sufficientlyunderstand the trial process or any part of it. We note that he has a number of previousconvictions dating back to 1994 and is therefore no stranger to the courts. Further, itis apparent from the comprehensive submissions he has filed in support of his currentapplication that Mr Snowden has a fairly detailed understanding of the criminalprocess.[21] As Wylie J noted, this was a short trial (one day) before an experienced Judgewho was aware of Mr Snowden's brain injuries.13 Mr Snowden was not in the witnessbox for very long. We have reviewed the transcript of his evidence and agree withWylie J's assessment that Mr Snowden did not appear to have any difficulty givingevidence and was able to readily recall matters of detail.14 He was represented byexperienced trial counsel who deposed that, in his view, Mr Snowden was able tocommunicate his instructions and a communications assistant was "not essential".15Wylie J noted that neither the document from the forensic nurse nor the previous s 38reports, referred to at [15] above, suggested otherwise.16[22] We also reject any suggestion that the fact that the Court did not provideMr Snowden with additional breaks or additional time to discuss matters with hislawyer (assuming that to be the case) has created a real risk that the outcome of thetrial was affected, or caused the trial to be unfair. As noted above, this was a very13 Mr Snowden gave evidence about his brain injuries at trial, and the Judge noted this in herjudgment: see DC conviction judgment, above n 1, at [27].14 HC judgment, above n 2, at [31].15 At [13].16 At [30].short trial and Mr Snowden spent limited time in the witness box. He did not appearto have any difficulty understanding the questions put to him or recalling matters ofdetail.[23] There does not appear to be any material risk that a miscarriage of justice mayhave occurred as a result of the trial Judge making insufficient accommodations at trialfor Mr Snowden's brain injuries.The trial Judge's assessment of the evidence[24] Mr Snowden submits that the trial Judge erred in her assessment of theevidence in a number of respects, including in relation to inconsistencies between thecomplainant's police statement, her 111 call, and her evidence at trial. For example,Mr Snowden says that the complainant's evidence about where Mr Snowden was inher room and where on her body he had touched her was inconsistent with earlierstatements she had made to police and to the 111 call operator. Mr Snowden's view isthat the complainant's evidence (or key parts of it) should have been rejected due tosuch inconsistencies.[25] This proposed ground of appeal appears to largely replicate arguments madeby Mr Snowden in the High Court, which Wylie J rejected in the following terms:[37] I consider that no miscarriage of justice arises from the Judge'sassessment of the evidence. Mr Snowden was convicted in the face of a strongCrown case. He was known to the complainant. On the night of the intrusionand indecent assault, her salt lamp was on and she immediately recognisedMr Snowden as the intruder. He had been living next to her for four weeksand she had had various encounters with him. Immediately after the incidentthe complainant went around to her other neighbour, A, and told him what hadhappened. His evidence was consistent with her evidence. The Police werecalled promptly and the complainant made a formal statement early thefollowing morning. She gave more detailed evidence at trial. Her evidencewas unshaken in the face of thorough cross-examination by experiencedcounsel. The perceived inconsistencies in the prosecution case (as identifiedby Mr Snowden) were put to the complainant and other witnesses.[38] The Judge had the benefit of hearing both from the complainant andfrom Mr Snowden. She stated at the beginning of the verdicts judgment thatthe focus at trial was on the oral evidence and she reached her verdicts basedon her assessment of the demeanour of the various witnesses called, preferringthe complainant's evidence over Mr Snowden's evidence. She gave reasonsfor taking this view. The Judge was clearly entitled to prefer the complainant'sevidence and, having done so, to be satisfied beyond reasonable doubt of eachof the elements of the charges.[26] This Court will generally be slow to grant leave for a second appeal where theappeal concerns issues which have been "thoroughly traversed by the lower courts".17This Court will also be slow to grant leave where the appeal challenges concurrentfactual findings in the courts below, especially in the case of a judge-alone trial at firstinstance.18[27] Mr Snowden has failed to persuade us that it is reasonably arguable that thetrial Judge made any material errors in her assessment of the evidence that may haveaffected the outcome of the trial. On the contrary, we agree with the reasoning ofWylie J and his conclusion that the trial Judge was clearly entitled to prefer thecomplainant's evidence and, having done so, to be satisfied that each of the elementsof the charges had been proven beyond reasonable doubt.Conclusion[28] The proposed second appeal does not raise any matters of general or publicimportance. In addition, Mr Snowden has failed to establish that a miscarriage ofjustice may have occurred or may occur unless the appeal is heard. As a result, thereis no basis for granting leave to bring a second appeal.Result[29] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent17 Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CPA237.04], citingWells v R [2015] NZCA 528.18 At [CPA237.04], citing R (CA176/2016) v Police [2016] NZCA 403 at [26] and Warren v R [2016]NZCA 108 at [30].