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IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2010-483-000031

P
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing:	5 July 2010

Counsel:	Appellant in person
L C Rowe for respondent

Judgment:	6 July 2010

RESERVED JUDGMENT OF DOBSON J

[1]       On  24  August  2009,  Ms P    was  convicted,  at  the  conclusion  of  a defended hearing in the Wanganui District Court, on two charges of intentional damage, one relating to panes of glass in a door and the second to a trophy, and a third charge of threatening to injure.   She was sentenced to 100 hours community work and ordered to pay reparation of $361.40.

[2]       Since then, there have been protracted attempts by Ms P   to pursue her appeal against those convictions and the sentence.

 

[3]       In the second of two Minutes I issued, dated 11 February 2010, I gave certain directions about steps that had to occur within defined time limits, in default of which the appeal would be struck out.  Shortly after those time limits expired, and without  those  steps  occurring,  counsel  then  acting  for  Ms P    filed  a  notice abandoning her appeal.

[4]       Thereafter, Gendall J dealt with what purported to be a further appeal filed by Ms P    in  person  on  11  May 2010,  in  respect  of  the  same  convictions  and sentence.   The circumstances in which Gendall J treated the second appeal as an application for reinstatement, and the terms on which a reinstated appeal might proceed, are dealt with in his Memorandum of 3 June 2010.  Because they are all relevant to what has transpired subsequently, I set out the terms of that Memorandum as follows:

[1]        It has become necessary for me to consider one appeal, already abandoned, by the applicant (2009-483-000033) and what purports to be another appeal in respect of the same conviction and sentence.   This was filed by Ms P   in person on 11 May 2010.

[2]        Because  of  the  circumstances  that  I  outline  the  Court  may  be prepared  to  treat  the  second  “appeal”  as  an  application  to  reinstate  the original appeal which was dismissed by Miller J on 31 March 2010 upon the applicant’s counsel abandoning the appeal against conviction and sentence.

[3]        As best as I can ascertain the background is as follows.  Ms P   was convicted on 24 August 2009, after a defended hearing in the District Court at Wanganui, on two counts of wilful damage and one of intimidation. She  was  sentenced  to  100 hours’  community  work  and  ordered  to  pay reparation of $361.40.

[4]        She appealed against her conviction and sentence.   Essentially the only ground advanced was of counsel incompetence by her then counsel, Mr R Leith.

[5]        Counsel for the purpose of the appeal was a Lower Hutt Barrister, Mr G R Fulton.

[6]        A  fixture  was  allocated  for  1  December  2009  but,  vacated  on
26 November 2009 (see the Minute of Dobson J of 2 December 2009) “in reliance on a Memorandum of Counsel (Mr Fulton) indicating that it was clearly unready for argument”.

[7]        Dobson  J  then  directed  Ms  P    file  and  serve  an  affidavit addressing the factual matters to be relied upon her in support of the appeal and this was required by 14 December 2009.   Further, Ms P   was “to procure an affidavit from trial counsel, Mr Leith, ... to be filed and served by

21 December 2009”.  Dobson J allocated a time for hearing of the appeal on
12 February 2010.

[8]        But nothing was done.   On 11 February 2010 Mr Fulton sent a further memorandum, faxed to the Wanganui District Court in which he said he had misplaced certain documents in December 2009.  He acknowledged that she should have got copies from the Court and did not “without any justifiable reason” contact the Court or Crown Solicitor.   He said he had recovered  the  documents  but  had  been  unable  to  communicate  with Ms P  .  He said that “as the legal aid form is incomplete, [he] is without a valid brief, and does not have an instructing solicitor”.   He accepts any criticism directed  towards  him in  respect  of  failure  to  comply  with  the directions and asked for the matter be adjourned with appearances excused. This request came in excess of two months after the directions made by Dobson J.  His Honour was left in an impossible situation and recorded that the circumstances of non-compliance with the Minute issued on 2 December
2009.  He said it was entirely unsatisfactory and added:

Had the failures to adhere to the timetable and have the appeal ready for the allocated hearing tomorrow been in any material measure attributable to Ms P   herself, then I would have acceded to the respondent’s request that an adjournment be declined and the appeal dismissed for want of prosecution.

[9]      The Judge noted, however, that Mr Fulton assumed complete responsibility and that it would be unjust in those circumstances to strike out the appeal.  His Honour then varied the terms of his Minute and made the following orders:

•   By 12 March 2010 Ms P   is to file and serve an affidavit addressing the factual matters relied on by her in relation to the conduct of the defended hearing;

•   She is then to procure an affidavit from trial counsel, Mr Leith, which is to be filed and served by 19 March 2010.

The Judge directed that a fixture be then allocated and if those documents were not filed within that time “then the appeal is to be struck out”.   His Honour  directed  that  the  Minute  be  served  upon  both  Ms  P    and Mr Fulton.

[10]      Again, nothing was done. Mr Fulton then, on 31 March 2010, filed a notice abandoning the appeal against conviction and sentence.   As a consequence Miller J dismissed the appeal.

[11]      Now, Ms P   has filed a further appeal.  I am prepared to treat it as an application to reinstate her appeal.   In essence, she said she did not understand that she was agreeing with, or instructing, Mr Fulton to abandon the appeal.  She has not filed any affidavit.  But she has communicated to the Court by letter.  Mr Fulton has filed an affidavit dated 27 May 2010 which sets out a long list of matters which he advances justification in failing to provide affidavits or comply with the directions of Dobson J.  Counsel will know, or should, of the requirements of counsel in acting for an appellant where the grounds of appeal to be advanced, are those of incompetence of counsel at trial.  I return to those shortly.  However, he deposes that he had

discussed with Ms P   matters of her health and the merits of the appeal, although he does not depose as to the date of that meeting and instructions but says that he “thought that we agreed to abandon the appeal” and acted upon that belief and advised the Court.

[12]      Counsel deposes that he accepts that he may have inconvenienced the Court, but consider that “appellant should have her situation set before the Court promptly and without demur”.   Having tendered this affidavit, Mr Fulton of course is no longer counsel for Ms P  .   It seems she represents herself.  Whether represented or not, she will have two hurdles to overcome.

[13]      First  the  Court  must  be  persuaded  that  the  appeal  should  be reinstated.   Whether or not  a notice of abandonment  had  been filed  by Mr Fulton, the appeal would no doubt have been dismissed for repeated non- compliance on two occasions with the directions of Dobson J.  Appellants cannot simply proffer a ground of appeal that there was counsel “incompetence” at trial and do no more.   As Dobson J observed, what is required is an affidavit from the applicant or others as to circumstances upon which the conviction and sentence was entered, a waiver of privilege to enable trial counsel to make an affidavit responding to allegations and although Dobson J was quite entitled to require this affidavit to be obtained from the applicant’s original counsel, usually it is for the respondent Crown or police to do so.

[14]      I would have thought Mr Fulton would have been well aware of the provisions of r 12A of the Court of Appeal (Criminal) Rules 2001.  Although they apply to appeals to the Court of Appeal where a complaint is made against trial counsel, nevertheless they provide guidance as to the proper procedure to be adopted whenever allegations of counsel incompetence are advanced in an appeal against conviction or sentence. Rule 12A provides:

12A   Complaint against trial counsel

(1)        If a  ground of appeal is that there was a miscarriage of justice because of the conduct of the appellant’s counsel at the trial or sentencing, particulars of the conduct concerned must be given in—

(a)        the notice of appeal; or

(b)        a  memorandum  to  be  filed  and  served  by  the  appellant within 30 working days of filing the notice of appeal.

(2)        The appellant must, within 30 working days of filing notice of appeal,—

(a)        provide  to  the  prosecutor  a  written  waiver  of privilege addressed to the appellant’s counsel at the trial or sentencing;  and

(b)        file and serve on the prosecutor any affidavits that relate to the ground of appeal.

(3)      If the appellant considers that a waiver of privilege is inappropriate, the appellant may apply for an exemption from subclause (2)(a) and the Court, if it considers that an exemption is appropriate, may grant it.

(4)        The prosecutor must file and serve any affidavit in reply within 15 working days after service of the appellant’s affidavit.

The    implications    and    effect    of    that    rule    are    discussed    in
R v E(CA113/2009).1

[15]      Mr Fulton is to be criticised, and the Court is most concerned for the manner  in  which  the  appeal  was  not  advanced  by  him.    None  of  the directions  of  Dobson J  heeded.    Despite  the  fact  that  there  was  every justification for the appeal to be struck out, as I have said the second “notice of appeal” may be treated as an application to reinstate the appeal.   If the matters referred to below are complied with then, assuming reinstatement, the appeal could be dealt with on the merits.  But if the applicant, whether in person  or  through  a  new  counsel,  wishes  the  Court  to  act  upon  the application then the following applies:

(1)        The application to reinstate the appeal, and if successful, the appeal, is to be heard at 10.00am on 5 July 2010.   Before then, the following must occur.

(2)        A  written  waiver  of  privilege  by  the  applicant  must  be provided   to   the   Crown   prosecutor   representing   the respondent by 5.00pm Friday 4 June 2010;

(3)        Ms P   must file and serve her affidavit and any other affidavits  in  support  of  the  allegation  of  counsel incompetence by Mr Leith in the District Court by Friday
18 June 2010;

(4)        The Crown may obtain and file an affidavit from Mr Leith, or others, on matters relevant to the grounds of appeal by Friday 7 July 2010;

(5)        Failing action by the applicant in terms of paras (2) and (3) the application to reinstate the appeal will be declined, and the dismissal of the appeal confirmed.

[5]       There has been substantial non-compliance with the conditions stipulated in paragraph [15] of Gendall J’s Memorandum.

[6]       First, the requirement for a written waiver of privilege in [15](2) was not complied with.  A letter supposedly provided to the Wanganui Crown Prosecutor and dated 4 June 2010 said:

1           R v E (CA113/2009) [2009] NZCA 554.

Please find enclosed a waiver of privilege as directed by the Court.

[7]       No such waiver was enclosed with the copy of that communication exhibited to an affidavit Ms P   has subsequently completed.  Mr Rowe confirmed that no waiver document was received by his office.

[8]       Ms P   suggested that she had meant the above sentence to constitute the waiver, and was unaware that anything more was required.   Ms P   describes herself as a company director, and it is difficult to accept that a person of any business experience would use the words quoted above to convey the unequivocal statement required of such a waiver.  Mr Rowe’s office could not responsibly ask Mr Leith to discuss the content of an affidavit about the course of his conduct of Ms P  ’s defence , without such an unequivocal, written communication from Ms P  .

[9]       The  third  requirement  in  [15]  of  Gendall  J’s  Memorandum  was  for Ms P   to file and serve her affidavit, and any others in support of the allegation of counsel incompetence by Mr Leith, by 18 June 2010.  It must have been apparent to Ms P   that the requirement for such an affidavit included her particularised version of what Mr Leith had supposedly done wrong in conducting the defence on her behalf.   Generalised criticisms that may have been conveyed in other contexts would be insufficient for the Crown Prosecutor to obtain an affidavit in answer to them from Mr Leith.

[10]     Ms P   did complete an affidavit on 21 June 2010.  The original on the Court  file  has  relatively  substantial  exhibits  attached  to  it.    I  was  advised  by Mr Rowe that the text of the affidavit, without any exhibits at all, was served at his office on or after 21 June 2010.   The original is recorded as having been filed on
24 June 2010.  The absence of exhibits on the copy served on Mr Rowe’s office has not been corrected by Ms P  , but Mr Rowe acknowledged that his office had been able to reconstruct a substantial part of the exhibits from other sources.

[11]     The failure to particularise the aspects of Mr Leith’s conduct that Ms P   claims were incompetence on his part substantially prejudices the ability of the respondent to answer such claims.  Accordingly, I was not persuaded that any further

indulgence ought to be granted to Ms P   to remedy the failures to comply with the reasonable conditions set out in Gendall J’s 3 June 2010 Memorandum.

[12]     In traversing these concerns with Ms P  , she repeatedly denied having been  served  with  Gendall J’s  Memorandum.    When  I  pointed  out  that  the  file contained a record of service on her by the bailiff within the Courthouse on the afternoon  of  3 June  2010,  she  claimed  that  that  was  wrong.     However,  her subsequent affidavit makes reference to the Memorandum, as does her 4 June 2010 letter addressed to the Crown Prosecutor which began:

I respond and comply to the Memorandum of J Gendall dated 3 June 2010.

[13]     I am accordingly satisfied that Ms P   was not telling the truth in denying knowledge of the contents of that Memorandum.

[14]     Although in no way determinative, I was also concerned at the apparently remote prospects for Ms P  ’s claims of counsel incompetence on the part of Mr Leith,  to  afford  any  realistic  grounds  for  a  successful  appeal  against  the convictions entered.   It is apparent from the transcript of evidence at the District Court hearing that Ms P  ’s version of events was put by Mr Leith in cross- examination of the prosecution witnesses.  Ms P   elected to give evidence and the District Court’s Judge’s findings constitute a rejection of her explanation of the sequence of events.

[15]     Ms P   now  claims  to  have  other  persons  she  would  want  to  call  as witnesses at a rehearing, but accepts that none of them were present at the time the relevant events took place.   There is no immediately apparent basis on which to criticise Mr Leith for putting Ms P  ’s version of events in cross-examination, and leading her version from her after she had elected to give evidence.

[16]     For all these reasons, I was satisfied at the conclusion of the hearing that Ms P   was not entitled to any further indulgence by making yet another set of interlocutory orders that would facilitate subsequent hearing of her appeal.

[17]	I accordingly advised Ms P   that her conditionally reinstated appeal was struck  out  for  failure  to  comply  with  the  conditions  set  in  the  3  June  2010
Memorandum.

Dobson J

Solicitors:
Crown Solicitor, Wanganui for respondent

Copy to:
Mina P  , c/- 8 Holyoake Street, Wanganui East