IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE	
CRI-2019-454-000011
[2019] NZHC 1743	

BETWEEN	PHILIP LESLIE STEWART
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	23 July 2019	
Appearances:	Appellant in person
J H Harvey for Respondent	
Judgment:	23 July 2019	

JUDGMENT OF COOKE J

[1]	Mr Stewart was convicted of assault with a weapon1 and trespass2 after a Judge-alone trial before Judge Rowe in the District Court at Palmerston North on   19 October 2018.3    Mr Stewart filed a notice of appeal against his convictions on     1 May 2019. He now applies for leave to appeal out of time.

[2]	On 24 June 2019, the Court gave leave for Mr Stewart’s counsel to withdraw. Mr Stewart proceeds with his application without counsel.

Summary of offending

[3]	Mr Stewart had been in a relationship with the complainant for about one year, during which period both parties had resided together at a remote rural address in Ohingaiti, about 90 km of Palmerston North. That relationship had ended

1	Crimes Act 1961, s 202C; maximum penalty five years’ imprisonment.
2	Trespass Act 1980, ss 3(1) and 11(2)(a); maximum penalty three months’ imprisonment.
3	Police v Stewart [2018] NZDC 24140.

STEWART v NEW ZEALAND POLICE [2019] NZHC 1743 [23 July 2019]

approximately one month before the  alleged  offending.  On  7  November  2017, Mr Stewart was issued with a trespass notice prohibiting him from attending the address for a period of two years.

[4]	On 4 December 2017, Mr Stewart arranged to collect his belongings from the address while a police officer was present. The police officer decided that Mr Stewart could not collect any items that were claimed by both Mr Stewart and the complainant. One item claimed by both parties was a water trough.

[5]	Later that day, in the absence of the police officer, Mr Stewart returned to the address, by agreement, to collect two canopies he had left behind outside the boundaries of the property. The complainant went to the front gate of the property to ensure that Mr Stewart only took the canopies before leaving. After placing the canopies on his ute, Mr Stewart climbed over the fence and entered the property. The complainant told him that he was trespassing and that he had to leave. Mr Stewart refused and started walking towards the water trough.

[6]	Concerned that Mr Stewart might attempt to take the water trough, the complainant stood in front of Mr Stewart and began pushing him and grabbing at his top. Unable to physically stop him, the complainant then said she would take his keys, which had been left in the ute. She then climbed over the fence and headed for the ute. Mr Stewart ran after the complainant, picking up an aluminium tent pole along the way. After climbing over the fence, Mr Stewart waved the tent pole towards the complainant with a wild look in his eyes.

[7]	Mr Stewart hit a small Jack Russell dog that was nearby, which yelped and ran off in pain. He then walked past the complainant and, as he was climbing back over the fence, hit her across the left shoulder with the tent pole. He then left the property in his ute. The complainant sustained a sore shoulder and red welt as a result of the assault.

District Court decision

[8]	The Judge issued a reserved decision on 22 November 2018. The judgment comprehensively addresses and analyses the evidence.

[9]	In evidence, Mr Stewart explained that while he was collecting the canopies, the complainant was making very hurtful and sarcastic comments to him. The Judge said that the complainant accepted that she made some comments of this nature, although she disagreed about the details. Mr Stewart’s evidence was that he originally had no intention of entering the property but decided he would take the water trough to restore his dignity after the comments the complainant had made. On that basis, the Judge found the trespass charge proven beyond reasonable doubt.

[10]	In relation to the assault charge, Mr Stewart accepted that he had applied force to the complainant with the tent pole, although he maintained that he merely poked her with it as opposed to bring it down forcefully onto her collarbone. He relied on self-defence to defend the charge. He claimed that the complainant had encouraged the dog to attack him, which is why he struck the dog. He claimed that the complainant grabbed him around the waist as he was climbing over the fence and tried to stop him from leaving. In his version of events, it was either when the complainant was coming to grab him, or while she was grabbing him, that he prodded her with the tent pole.

[11]	The Judge rejected Mr Stewart’s version of events for the following reasons:

(a)	Mr Stewart claimed that he did not know why he originally picked up the tent pole.

(b)	Mr Stewart said that he hit the dog because “it needed discipline”.

(c)	Mr Stewart said he could not remember whether he raised the tent pole in a threatening manner before he struck the complainant with it.

(d)	Mr Stewart’s claim that the complainant grabbed him to stop him from leaving was at odds with his agreement that the complainant had earlier wanted him to leave the property.

(e)	Mr Stewart was inconsistent as to where the complainant was when he prodded her with the pole — she was either half a metre away or already grabbing him.

(f)	Mr Stewart’s credibility was undermined by the fact that, in his initial statement to police on the day of the offending, he denied that he had entered the property, hit the dog or hit the complainant. He also claimed that he had no knowledge of the tent pole, which was found on his ute.

(g)	The complainants account was credible because she gave consistent and convincing detail about the events, made reasonable concessions, and clearly had an injury consistent with being struck forcefully by a downwards motion, which was demonstrated with photographic evidence. She also immediately complained to police about the matter.

(h)	Mr Stewart’s own evidence demonstrated that he clearly had motive to hit the complainant.

[12]	The Judge referred to allegations by both parties of earlier incidents of assault. Ultimately, the Judge did not regard those allegations as helpful or probative in determining what occurred on 4 December 2017. He suggested that, if Mr Stewart took issue with how the police had dealt with these earlier incidents, he could pursue the matter in separate proceedings before the Disputes Tribunal.

[13]	The Judge rejected that Mr Stewart acted in self-defence and found the charged proved beyond reasonable doubt.

Grounds for appeal

[14]	In an earlier memorandum to the Court, Mr Stewart’s former counsel said that the appeal involved three grounds:

(a)	That Judge Rowe failed to meet the minimum standards of criminal procedure prescribed by s 25 of the New Zealand Bill of Rights Act 1990.

(b)	That Judge Rowe failed to properly consider the pattern of prior domestic violence when considering his self-defence narrative.

(c)	That Judge Rowe placed incorrect weight on the credibility of the complainant.

[15]	In his memorandum dated 17 July 2019 filed in response to Simon France J’s minute of 24 June 2019, Mr Stewart sets out the history of his relationship with the complainant in detail. He recounts the previous allegations of assault that he referred to before Judge Rowe and explains his belief that the police did not treat his complaints seriously. Mr Stewart goes on to express his views on how the police and courts treat domestic violence against men. In particular, he takes with the adversarial nature of the criminal justice system, which he says focuses unfairly on the culpability of the accused and fails to uncover the truth. Mr Stewart concludes by saying that he would like to be taken seriously and be allowed to pursue his right to appeal as provided for by the New Zealand Bill of Rights Act.

Discussion

[16]	Extensions of time within which to appeal may be granted under s 273(3) of the Criminal Procedure Act 2011. That provision applies by operation of s 43(1) of the Bail Act. For an application for an extension of time to appeal to be granted it must be in the interests of justice to do so. Extension of time applications ultimately reduce to two questions: the reasons the appeal was filed late and the merits of the prospective appeal points.4

[17]	In his minute of 24 June 2019, Simon France J advised Mr Stewart that the general nature of his challenge to minimum standards of criminal procedure lacked sufficient detail as to what minimum standards he claimed were not met and on what basis he claimed those standards were not met. Simon France J said that Mr Stewart would have to address that matter, and explain why his notice of appeal was filed out of time, if he is to be granted leave to appeal.

[18]	Mr Stewart has not addressed those matters. The discursive nature of his memorandum does not articulate any ground of appeal.

4	Mikus v R [2011] NZCA 298 at [26].

Standard for appeal

[19]	For Mr Stewart to succeed on appeal, he must be able to satisfy the Court that the trial judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any other reason.5 A miscarriage of justice is defined as any error, irregularity, or occurrence that created a real risk that the outcome of the trial was affected, or that resulted in an unfair trial or a trial that was a nullity.6 A “real risk” is where “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.7

[20]	The Supreme Court has recently explained that a challenge to a trial judge’s assessment of the evidence is an appeal by way of rehearing conducted on the basis of the principles established in Austin, Nichols & Co Inc v Stichting Lodestar.8 That means the appellate court must reach its own view on the evidence, although the burden remains on the appellant to demonstrate that the trial judge erred in his or her assessment.9 Appropriate weight must be given to advantages the trial judge would have had in assessing matters of credibility.10

Submissions for the Crown

[21]	In his submissions on behalf of the respondent, Mr Harvey attempted to address any appeal ground. He submitted that no such ground was arguable. He emphasised that Mr Stewart has not filed any affidavit evidence to support his claims.

[22]	In relation to the New Zealand Bill of Rights argument, Mr Harvey submitted that there was nothing from the record of the Judge’s decision that suggested any aspect of the trial was unusual or unfair, and pointed out that counsel to assist        Mr Stewart was present at trial who can be presumed to have raised any such issues.

5	Criminal Procedure Act 2011, s 232(2).
6	Section 232(4).
7	R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].
8	Sena v Police [2019] NZSC 55 at [32]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
9	At [38].
10	At [38]–[40].

[23]	Although there was some delay in bringing the matter to hearing (the trial occurred one year after the offending), this was partially due to Mr Stewart dismissing another former counsel in August 2018.

[24]	The Judge was attentive to the burden of proof, which ensured that Mr Stewart was afforded his right to be presumed innocent until proven guilty.

[25]	There is also no evidence to suggest that Mr Stewart was compelled to give evidence. As Mr Harvey pointed out, it is common for a defendant pursuing self- defence to give evidence in order to establish the circumstances as he or she perceived them to be at the time.

[26]	Mr Harvey submitted that the allegations of previous assault were propensity evidence, which would ordinarily be admissible as evidence of the dynamics of the relationship.11 The Judge, however, considered that the competing accounts between Mr Stewart and the complainant lacked enough detail to be sufficiently probative as evidence. Accordingly, he submitted, the Judge correctly set the evidence aside. In any case, the point was clearly raised before the Judge and dismissed. The Judge had not failed to take Mr Stewart’s evidence into account.

[27]	Finally, with respect to the complainant’s credibility, Mr Harvey emphasised that no affidavit evidence has been filed by Mr Stewart and so it was difficult to understand the nature of his challenge on this point. In any case, the Judge explained in some detail why he preferred  the  evidence  of  the  complainant  over  that  of  Mr Stewart, so there is no basis upon which to disturb his assessment on appeal.

Conclusion

[28]	Although Mr Stewart has not fully explained the reasons why the notice of appeal was filed out of time, the period of delay has not been long, and it is apparent that there have  been  difficulties  in  the  relationship  he  has  had  with  counsel.  Mr Stewart is a litigant in person. It seems to me to be important that the Court address his proposed appeal on its merits rather than dismissing the application on this basis

11	Evidence Act 2006, s 41; and Campbell-Joyce v R [2016] NZCA 192.

alone. If there is some arguable merit in the appeal, it seems to me it would be appropriate to grant leave to appeal out of time.

[29]	Mr Stewart emphasised in his oral submissions that he was seeking a right to justice. He was fighting a number of issues, and that he needed to clear his name to start afresh. The key question, though, is whether he has an arguable case on his appeal in terms of the offences for which he has been convicted.

[30]	Mr Stewart clearly takes issue with the evidence of the complainant. His position appears to be that the Judge was wrong to accept her evidence, at least in part because of Mr Stewart’s allegations concerning her past behaviour. That theme underpins both the second and third proposed grounds of appeal. I accept Mr Harvey’s submission, however, that the Judge  rightly  treated  the  background  complaints  Mr Stewart makes as not relevant to the offending on 4 December 2017.

[31]	On Mr Stewart’s version of events on 4 December 2017 — that he had entered the property without permission, but only poked rather than hit the victim with the tent pole — he has still committed the offences. Mr Stewart’s argument that he was provoked by what the complainant said to him does not provide a defence. In terms of his claim of self-defence, it seems to me that the Judge has properly scrutinised the evidence, and then made appropriate findings for reasons properly articulated. I see no error in this approach, and am not persuaded that the Judge was wrong to make these findings. Mr Stewart has not advanced any specific challenge against the Judge’s reasoning on credibility, and there does not appear to be any basis upon which this Court could depart from it. Equally, there appears to be no basis upon which to criticise the Judge for failing to make findings on Mr Stewart’s allegations concerning the complaints past behaviour. In  his  memorandum  of  17  July  2019,  much  of Mr Stewart’s frustration seemed to be directed at the police. This application for leave to appeal is not the appropriate venue in which to deal with those matters.

[32]	For those reasons, Mr Stewart has failed to demonstrate that he has an arguable appeal, and that, in the circumstances, it would be in the interests of justice to grant leave for him to appeal out of time.

Result

[33]	The application for leave to appeal is dismissed.

Cooke J

Solicitors:
BVA, Palmerston North for Respondent