THE QUEEN v BERNARD CHRISTOPHER FRANCIS [2001] NZCA 282 (20 August 2001)

IN THE court of appeal of new zealand

ca77/01

THE QUEEN

V

BERNARD CHRISTOPHER FRANCIS

Hearing:	20 August 2001
Coram:	Gault J Thomas J Tipping J
Appearances:	Applicant in Person (no appearance) D J Boldt for Crown
Judgment:	20 August 2001

judgment of the court DELIVERED BY GAULT J

Judgment

[1] The applicant, Mr Francis, has applied for special leave to appeal against his conviction and sentence pursuant to s144(3) of the Summary Proceedings Act 1957.He did not appear this morning in support of his application.

[2] In a reserved judgment given by Judge Weir on 16 August 2000 in the District Court at Rotorua, Mr Francis was convicted of refusing to accompany an enforcement officer to a place when required to do so under s58B(1) of the Transport Act 1962 and resisting a constable acting in the course of his duty. He was sentenced on 6 September 2000 to four months periodic detention and ordered to pay costs of $500.

[3] The charges arose out of an incident on 12 November 1998 whereby Mr Francis was apprehended on suspicion that he had been driving with excess blood alcohol.Having made two unsuccessful requests that Mr Francis accompany him to the Rotorua Police station for the purpose of an evidential breath test, blood test, or both, the officer arrested Mr Francis for failing to accompany him.Subsequent to the arrest Mr Francis struggled with the police officer to the extent that the officer found it necessary to call another nearby patrol for assistance.Throughout the struggle Mr Francis maintained that he had not been the driver of the car.

[4] After a comprehensive examination of the evidence and a close analysis of the facts, the Judge made a credibility finding in relation to the evidence of Christopher Francis which was crucial to the appellant's case.He said:

Having seen and observed this witness, it is my view that his testimony cannot in any way be relied upon and I prefer the evidence of Mr Pelasio.

[5] Following that credibility finding, the Judge found the charge proved on the evidence called by the prosecution and convicted Mr Francis on both charges.

[6] Mr Francis appealed against his conviction to the High Court.In advance of that hearing he made a pre-appeal application for disclosure on the basis that he had been denied full disclosure by the Police, who, he maintains, hold records of communications between the Police on 12 November 1998 in connection with the incident that was the subject of his prosecution and conviction.On 15 September 2000 Nicholson J ordered that the New Zealand Police advise Mr Francis in writing as to whether the Police have any record of communication between Police on 12 November 1998 and that if there was such a record that it be disclosed to him.On 26 September 2000 Crown counsel wrote to Mr Francis and advised him that the Police had no such record.Mr Francis did not accept that advice and, in a minute dated 6 October 2000, Paterson J stated that if Mr Francis wished to take the matter further he was within seven days to file an application in the High Court with supporting affidavits seeking further directions.This he did, but Potter J declined his application in a judgment delivered on 7 December 2000.Her Honour stated:

It seems clear to me that this application must be declined.In the first place it must be declined for the very obvious reason that there is very little point in the Court directing the disclosure of material which the Court has been reliably informed, does not exist ...

But there is another reason that confirms me in reaching that conclusion.Mr Francis claims a breach of natural justice if these tapes are not made available to him.Given a very full hearing in the District Court, the analysis of the evidence of Judge Weir, and his credibility findings, I cannot see that evidence of the radio communications that preceded the Police's approach of Mr Francis's vehicle, could in any way affect the determination of the Court in respect of the specific charges of refusing to accompany and refusing arrest.

[7] Since that hearing Mr Francis has made an unsuccessful attempt to appeal both his conviction and his sentence in the High Court.Potter J heard this appeal on 15 December 2000.In dismissing the appeal she said that it was well established that the High Court on appeal would not interfere with credibility findings of a District Court Judge.The Judge stated that she was not satisfied that Judge Weir was wrong or had erred in his decision in the District Court.

[8] Dissatisfied with this decision, Mr Francis then sought leave to appeal to this Court pursuant to s144(2) of the Summary Proceedings Act.Mr Francis did not appear.Morris J refused leave on the basis that there was no question of law arising from Potter J's judgment and nothing of significance to justify referring the case to this Court.

[9] Mr Francis now seeks special leave to appeal to this Court pursuant to s144(3) of the Summary Proceedings Act 1957 on the grounds that:

(i) the decision and/or orders of Potter J on 7 December 2000 were wrong in fact and in law;

(ii) that Potter J was remiss not to have issued Warrants for the arrest of the two appellant witnesses who refused to be examined during the High Court hearing on 7 December 2000;

(iii) that Potter J was remiss not to have allowed the Appellant continued legal representation during the hearing on 7 December 2000; and

(iv) that the question of law involved is one which is by reason of its general and public importance ought to be submitted to the Court of Appeal for decision.

[10] We note that neither the 7 December decision nor the 15 December decision refers to grounds (ii) or (iii).In an affidavit filed in support of his application Mr Francis states that he complained to the High Court that his two summonsed witnesses failed to appear.No mention is made of the issue of legal representation.

Result

[11] The principal complaint is against refusal of the Court to enforce disclosure.At the substantive hearing Mr Francis cross-examined police witnesses who denied on oath that the records he seeks exist.The evidence, and the statements by Crown counsel, have been accepted.

[12] There is no issue of law that warrants consideration on a second appeal.

[13] Leave is refused.

[14] If it remains relevant, Mr Francis is to resume his sentence of periodic detention by reporting to the Rotorua Work Centre on Saturday August 25 at 8.30am.

Solicitors

Crown Law Office, Wellington