The Queen v Burton [2006] NZCA 100 (24 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA197/05

THE QUEEN



v



ADRIAN PAUL BURTON

Hearing: 18 May 2006

Court: O'Regan, Panckhurst and Potter JJ

Counsel: Appellant in person
S B Edwards for Crown

Judgment: 24 May 2006

JUDGMENT OF THE COURT

The appeals against conviction and sentence are both dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1]	Mr Burton was convicted on 26 May 2005 after a jury trial in the District Court at Dunedin of one count of assault. He was sentenced by the trial Judge, Judge MacAskill to 200 hours of community service.

Sentence Appeal

[2]	Mr Burton’s appeal against sentence was not pursued at the hearing of his appeal. We formally dismiss it.

Facts

[3]

The incident which led to the charge against the appellant occurred in the early hours of 27 August 2004. The Crown case was as follows. The appellant was drinking in the bar of the Bowling Green Hotel in Dunedin. Sometime before the incident security staff of the hotel had approached the appellant and others and asked them to moderate their behaviour. Immediately before the incident, the appellant spoke with the marketing and entertainments manager of the hotel, Mr Hilton, who was off duty at the time, and a female friend of Mr Hilton. Mr Hilton objected to the appellant’s conduct in relation to the female patron, and told the appellant to leave the hotel. A few minutes later the appellant threatened Mr Hilton, who reported the incident to security staff of the hotel. Two of the hotel’s security officers, Mr Harwood and Mr Fa’atafa, told the appellant to leave the premises. He did not do so. The duty manager, Ms Knowles, then became involved. She took away from the appellant the bottle (or glass) from which he was drinking and told him to leave. The appellant then lunged at Ms Knowles, and was restrained by the two security officers who took him outside of the hotel to the carpark, where they let him go. The security officers walked back towards the hotel, where the hotel doorman, Mr Hugo was stationed. The appellant apparently mistaking Mr Hugo for one of the security personnel who had removed him from the hotel, approached Mr Hugo and kicked him in the leg, below the knee. All three security men then restrained the appellant and the police were called.

[4]

The appellant pursued three arguments in support of his appeal. These were:

(a) The trial was unfair because the complainant did not give evidence;

(b) He was not represented by a lawyer at the trial because of difficulties between him and the Legal Aid authorities, and this made the trial unfair;
(c) The evidence of the employees of the Bowling Green Hotel to the effect that he had assaulted Mr Hugo was concocted, to cover up the fact that the conduct of the security guards in evicting him from the hotel involved criminal behaviour on their part.

[5]	We will deal with these in the above order.

No evidence from complainant

[6]	The complainant was out of New Zealand at the time of the trial. Mr Burton said this prejudiced his case because he was not given the opportunity to cross-examine the complainant. The complainant had given evidence of the assault at depositions, but Mr Burton was critical of the fact that the lawyer then acting for Mr Burton asked the complainant only a few questions. He said if he had been able to cross-examine the complainant at trial, he would have been able to establish that the Crown case was a concoction by the hotel personnel.
[7]	There is no reason for us to conclude that the complainant would have recanted on his evidence to the effect that the appellant assaulted him, and nothing the appellant presented to us in argument gives any indication that that would have occurred. In those circumstances it is hard to see how the absence of the appellant could have had any adverse impact on the appellant’s position at trial.
[8]	A similar situation arose in one of the appeals dealt with by this Court in R v Taueki [2005] 3 NZLR 372, where the complainant of an assault outside a bar in the early hours of the morning was overseas at the time of the trial, and did not return for the trial. The Crown relied on the evidence of other witnesses to the assault. On appeal it was alleged that this had prejudiced the appellant’s case. This Court rejected that contention, and noted at [124] that there was no obligation on the Crown to call a complainant to give evidence.
[9]	We are satisfied that there is no basis to this ground of appeal.

No representation

[10]	Mr Burton said that he was prejudiced by not being represented at trial. In fact, he had an ongoing battle with the legal aid authorities, and had been in dispute with three lawyers who had previously been assigned to his case. He summoned these three lawyers to give evidence, and the trial Judge discharged those summonses as being abuses of process at the commencement of the trial.
[11]	There is no record that Mr Burton sought an adjournment, and he did not suggest to us that he had done so. We proceed on the basis, therefore, that he decided to represent himself at the trial.
[12]	It is clear that Judge MacAskill made every effort to assist Mr Burton in the conduct of the case. Mr Burton himself described Judge MacAskill as "patient and kindly" in the written material he placed before us. The transcript records a number of interventions made by the Judge to assist Mr Burton.
[13]	Mr Burton extensively cross-examined the Crown witnesses, and gave evidence in his own defence. He gave a reasonably coherent narrative of events from his point of view, which was consistent with the line of cross-examination he had adopted in relation to the Crown’s witnesses. Essentially his defence was that he had not assaulted Mr Hugo, and that the allegation against him was concocted by the staff of the hotel because he had made a complaint to the police about the conduct of the staff towards him.
[14]	The defence case was summarised by the Judge in the summing up in the following terms:

The accused denies being warned about his behaviour earlier. He admits speaking to Mr Hilton and his female friend but denies abusing them and later threatening Mr Hilton. He denies refusing to leave or stalling when asked by Mr Harwood and Mr Fa’atafa. He denies acting aggressively toward Ms Knowles. He suggests that his forward movement was caused by Ms Knowles removing what he says was his glass from his hand. He asserts that he was leaving, that he had moved some distance towards the door before he was pushed from behind into the staff member in front of him, he says there was a suggestion by Ms Knowles that this was an assault. He says that he was then grabbed by Mr Harwood and, he thinks, by Mr Hugo and not by Mr Fa’atafa. He was taken outside and forced to the ground by three security staff and held there. He denies that he was taken out into the car park and released. He denies that he kicked Mr Hugo. He denies that he struggled and was abusive while restrained and in that respect he disputes the evidence of Constable Leigh. He suggests that the allegations of aggressive behaviour towards Mr Hilton, Ms Knowles and Mr Hugo have been made up by the Crown witnesses to justify their having restrained him on the ground.

[15]

We are satisfied that the appellant was able to place before the jury the nature of his defence and to adequately challenge the Crown witnesses who gave evidence contrary to his version of events. The Judge fairly summarised the Crown case and the defence case, and the jury was satisfied beyond doubt that the Crown had proved that the assault took place. We are satisfied that there was no miscarriage of justice.

Concoction

[16]

As indicated earlier, the appellant argued before us that there had been a concoction of evidence by the Crown witnesses. This was largely a repetition of the position he had taken at trial. This was put before the jury in explicit terms in the Judge’s summing up, and it is clear that the jury rejected it. That was a matter for the jury, and there is no proper basis on which an appellate court could interfere with the jury’s decision in that regard.

Other matters

[17]

We record that Mr Burton attempted to raise with us other matters which did not bear on the conduct of the trial, particularly his disputes with the legal aid authorities, his complaint to the Police Complaints Authority and his dispute with Victim Support. None of these were relevant to the issues properly before the Court, and we say no more about them.

Result

[18]	We dismiss Mr Burton’s appeal against conviction.

Solicitors:
Crown Law Office, Wellington