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The Queen v Aliimatafitafi [2006] NZCA 67 (26 April 2006)

Last Updated: 9 May 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA233/05

THE QUEEN

v

IAO METAI ALIIMATAFITAFI

Hearing: 3 April 2006

Court: O'Regan, John Hansen and Harrison JJ

Counsel: C B Cato for Appellant
A R Burns for Crown

Judgment: 26 April 2006

JUDGMENT OF THE COURT

A The Court reformulates the question on appeal as two questions
and answers them as follows:

(i) Was the Judge obliged to make a factual finding as to the instructions given to counsel by the appellant?

Answer – In the circumstances of this case, yes.

(ii) Were such factual findings a prelude to the determination as to whether or not a miscarriage of justice had resulted?

Answer – Yes.

B Accordingly, the appeal is allowed and the matter remitted to the High Court for a further hearing.

____________________________________________________________________

REASONS

(Given by John Hansen J)

[1] On 8 September 2004 the appellant was convicted at the North Shore District Court by Judge Everitt on charges of disorderly behaviour and resisting the police. He was fined $300 for the first offence and was discharged on the second.
[2] His appeal against conviction and sentence was dismissed by Keane J on 19 April 2005.
[3] On 10 June 2005, by way of a Minute, Keane J declined the appellant’s application for leave to appeal to this Court.
[4] The appellant sought, and was granted, special leave from this Court as to one question of law. On 19 October 2005 the Court framed the question of law as follows:

Did the High Court Judge proceed inappropriately in law or incorrectly apply the test when determining Mr Aliimatafitafi’s complaint that his counsel had failed to seek his instructions as to whether he gave evidence or had failed to follow his instructions that he would give evidence?

Background Facts

[5] The first information laid against the appellant was that on 20 April 2004, in a public place, he behaved in a disorderly manner that was likely, in the circumstances, to cause violence against persons (an offence against s 3 of the Summary Offences Act 1981). The second was that on the same date he resisted Constable Cann who was acting in the execution of his duty (an offence against s 23(a) of the same Act).
[6] On that date the appellant had been at home with his son, and two grandchildren, drinking alcohol and playing a stereo loudly. A noise control officer attended the property and served the appellant with an abatement notice, which he tore up. The officer sought police assistance and returned to the property accompanied by two police constables. They sought assistance from the son, but this led to an elevation of the conflict with the son arming himself with a machete and a meat cleaver.
[7] Further police officers arrived, and the appellant became agitated. He returned to the house and then emerged with the stereo which he smashed on the roadway. He abused the police and was aggressive and confrontational.
[8] The son then approached the police with the machete and meat cleaver and was eventually shot and injured by the police. He dropped the weapons. The police allege the appellant picked up the two items and began to walk away. He was warned to drop the weapons and when he failed to do so, he was pepper sprayed by the police and taken into custody.
[9] At the defended hearing before Judge Everitt the appellant was represented by Mr Spring. The Judge found that the appellant had not behaved in a disorderly manner until after his son was shot. He found his earlier behaviour was not disorderly and did not justify arrest.
[10] The Judge went on to consider what developed thereafter and found that when the appellant picked up the weapons he behaved in a disorderly manner and thereafter resisted arrest. Of significance to the Judge’s findings was the fact that a police officer, Constable Cann, who arrived in the later stages of the confrontation gave evidence that he effectively re-arrested the appellant.
[11] Representing himself, the appellant appealed both conviction and sentence. The matter first came before Simon France J who issued a Minute that records:

[1] At the commencement of today’s appeal I raised with Mr Ali’imatafitafi difficulties concerning two of his stated grounds of appeal, which read:

4. Prosecution’s second theory of laying the same charges by another officer whose name does not appear in the Caption Sheet my defence was prepared for, and very late into the Court Hearing deprived the defendant an opportunity to prepare a defence properly.
5. The defence Barrister made his sole decision not to call for a defence statement without consultation with the defendant.

[2] I advised Mr Ali’imatafitafi that in order to successfully advance these two grounds, he would need to provide the Crown with a waiver of privilege to enable discussions with Mr Ali’imatafitafi’s trial counsel, and an affidavit to be filed. Mr Ali’imatafitafi had previously declined to do so.
[3] Mr Ali’imatafitafi has now indicated that he will provide a waiver. The appeal is adjourned to enable this to occur.
[4] To assist the parties, and particularly trial counsel, I record the relevant challenges as being:

1. that the defence was taken by surprise in that it was not appreciated that the disorderly conduct and resisting arrest charges also related to the time when Constable Cann had dealings with the appellant and in fact arrested him.
2. related to this, that Mr Ali’imatafitafi never saw the caption sheet that sets out the incident and specifically addresses Constable Cann’s role. He believes there was an earlier different caption sheet which was the only one he saw;
3. that trial counsel erred in failing to call Mr Ali’imatafitafi to testify.

[5] I direct that Mr Ali’imatafitafi should provide the waiver by Thursday, 3 March 2005. It can be given either to Mr Burns, or to trial counsel. If it is given to trial counsel, Mr Ali’imatafitafi should advise Mr Burns that he has done so. Because of uncertainty over trial counsel’s commitments, I do not timetable beyond this but a response should be filed as soon as possible. Once that is to hand no doubt Mr Burns will ensure a fixture is allocated.

[12] The appeal was heard by Keane J on 13 April 2005, and he dismissed it in a reserved decision dated 19 April 2005.
[13] Keane J was faced with affidavits from the appellant and his former counsel which created a conflict as to whether or not the appellant had given instructions that he should be called to give evidence.
[14] Keane J determined that he did not need to resolve that dispute because he asked the appellant what he would have said, assuming he had given evidence, in the District Court. He concluded:

I cannot then see that there could have been any sensible likelihood of a miscarriage of justice.

[15] In his brief Minute dismissing the application for leave to appeal he recorded that the matter turned principally on issues of fact and did not raise any question of law.

Submissions

[16] On behalf of the appellant, Mr Cato’s submissions were narrowly focused. He said it was necessary that Keane J resolve the factual conflict regarding the extent of the appellant’s instructions to Mr Spring.
[17] Mr Cato submitted that if there had been a finding that the appellant had instructed Mr Spring that he wished to give evidence, then a fair trial had been denied. Mr Cato submitted that the right to give evidence on one’s own behalf is guaranteed by the New Zealand Bill of Rights Act 1990, and that such a right is so fundamental the deprivation of it automatically leads to an unfair trial. He submitted that the deprivation of this fundamental right meant the Court did not need to go on and consider whether or not there had been a substantial miscarriage of justice.
[18] Mr Burns submitted that the Judge’s approach was correct. For the purposes of the appellant’s argument Keane J was prepared to accept that he had given instructions to his counsel that he wished to give evidence. The Judge then obtained from the appellant details of what his evidence would have been and concluded, correctly, that no substantial miscarriage arose from the failure of the appellant to give evidence in the District Court.

Discussion

[19] Because of the way the submissions unfolded we have found it necessary to reframe the question posed on a two-stage basis.
[20] The first question is, was the Judge obliged to make a factual finding as to the instructions given by the appellant to his counsel?

The second is, was such a factual finding necessary as a prelude to whether or not a substantial miscarriage of justice had resulted?

[21] In the High Court three affidavits were filed by the appellant and one by Mr Spring. In the main, the appellant’s affidavits focus on the events that occurred. Mr Spring, in his affidavit, accepted that he was taken by surprise by Police Constable Cann’s evidence that he arrested the appellant at the later stage. However, he continued that, at an earlier stage, both the appellant and his wife, who was also present, were advised he should not give evidence and they agreed with that arrangement. When the prosecution had completed its case he had a further brief discussion with the appellant and confirmed to him he should not give evidence. Mr Spring stated the appellant appeared to accept this advice. It was only after judgment was given convicting the appellant that he stated he wanted to explain his position and give evidence, despite the earlier understanding.
[22] The appellant responded in an affidavit of 23 March 2005. In it he accepted there was a brief whispered discussion which he stated he did not hear. But he stated he said to counsel that he wanted to give evidence about the alleged arrest by Police Constable Cann. He stated he did not accept counsel’s advice, although he conceded that it may have appeared this way to counsel He continued in his affidavit:

Mr Spring knew that there was no mention of an arrest by Officer Cann and I wanted to make a defence statement to the effect.

[23] This Court has held that to amount to an instruction to counsel, something more than a general discussion or indication of a preferred course is required (R v S [1998] 3 NZLR 392). If Mr Spring had followed accepted practice and obtained written instructions, difficulties would not have arisen. The evidence may ultimately be decisive in this regard, but it is clear that on the affidavits there is a conflict between the appellant and Mr Spring as to whether or not counsel was instructed that the appellant wished to give evidence.
[24] We also sympathise with Keane J who was confronted with an appellant in person attempting, with some difficulty, to convey his case.
[25] The normal practice where issues such as the present arise is for the deponents of the conflicting affidavits to be cross examined and a factual ruling made. In the circumstances of this case we consider that such a course should have been adopted. There was no other way to resolve the conflict contained in the affidavits.
[26] The challenge to Police Constable Cann’s evidence in this case was critical. The District Court Judge had found that the appellant’s earlier behaviour was not disorderly. He found the arrest in relation to that was not justified. It is clear that both the appellant, and his counsel, were taken by surprise during trial when the constable gave evidence that he had further arrested the appellant during the second stage of the incident and gave him his Bill of Rights advice while he restrained him on the ground.
[27] In the circumstances of this case we are of the view that the Judge ought to have determined the factual dispute before him. It was not satisfactory, as the Crown suggested, to "leap frog" that stage and simply consider whether or not a miscarriage had occurred.
[28] It is normal when affidavits are filed by accused persons alleging they should have given evidence to set out such evidence and the likely effect of it. In this case there is some mention in the appellant’s affidavits although, unsurprisingly, it is not fully developed.
[29] What is apparent is that the Judge asked the appellant what he would have said and the response included a denial of Constable Cann’s evidence as to what role the appellant played. In our view that is a matter that ought to have been established by way of evidence, and factual findings made, before the Court determined whether there was any likelihood of a miscarriage of justice. In the absence of such factual findings it is impossible to conclude the extent of such evidence and its likely impact on the decider of facts.
[30] Accordingly, we answer the two questions as follows:

(i) Was the Judge obliged to make a factual finding as to the instructions given to counsel by the appellant?

Answer – In the circumstances of this case, yes.

(ii) Were such factual findings a prelude to the determination as to whether or not a miscarriage of justice had resulted?
Answer – yes.

[31] In the light of the re-framed questions and the answers we have given it is unnecessary to deal with Mr Cato’s submission that effectively challenged the validity of the Privy Council’s decision in Howse v R [2005] UKPC 30; (2005) 21 CRNZ 823.
[32] Mr Cato submitted that if this Court answered the questions in the affirmative given what occurred to the appellant’s son, the stress, the number of hearings and the lenient view the District Court Judge took in imposing sentence, the appropriate course was to quash the conviction.
[33] While Mr Burns expressed sympathy for the position of the appellant he submitted the matter should be remitted to the High Court for determination.
[34] We agree with the Crown. In our view it is appropriate that this matter be remitted to the High Court for a determination of the factual issues referred to above. It will be a matter for the Crown whether they wish to pursue the matter further.
[35] Accordingly the questions are answered in the affirmative and the matter remitted to the High Court for a further hearing and findings.

Solicitors:
Crown Law Office, Wellington

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[1]	On 8 September 2004 the appellant was convicted at the North Shore District Court by Judge Everitt on charges of disorderly behaviour and resisting the police. He was fined $300 for the first offence and was discharged on the second.
[2]	His appeal against conviction and sentence was dismissed by Keane J on 19 April 2005.
[3]	On 10 June 2005, by way of a Minute, Keane J declined the appellant’s application for leave to appeal to this Court.
[4]	The appellant sought, and was granted, special leave from this Court as to one question of law. On 19 October 2005 the Court framed the question of law as follows:

[5]	The first information laid against the appellant was that on 20 April 2004, in a public place, he behaved in a disorderly manner that was likely, in the circumstances, to cause violence against persons (an offence against s 3 of the Summary Offences Act 1981). The second was that on the same date he resisted Constable Cann who was acting in the execution of his duty (an offence against s 23(a) of the same Act).
[6]	On that date the appellant had been at home with his son, and two grandchildren, drinking alcohol and playing a stereo loudly. A noise control officer attended the property and served the appellant with an abatement notice, which he tore up. The officer sought police assistance and returned to the property accompanied by two police constables. They sought assistance from the son, but this led to an elevation of the conflict with the son arming himself with a machete and a meat cleaver.
[7]	Further police officers arrived, and the appellant became agitated. He returned to the house and then emerged with the stereo which he smashed on the roadway. He abused the police and was aggressive and confrontational.
[8]	The son then approached the police with the machete and meat cleaver and was eventually shot and injured by the police. He dropped the weapons. The police allege the appellant picked up the two items and began to walk away. He was warned to drop the weapons and when he failed to do so, he was pepper sprayed by the police and taken into custody.
[9]	At the defended hearing before Judge Everitt the appellant was represented by Mr Spring. The Judge found that the appellant had not behaved in a disorderly manner until after his son was shot. He found his earlier behaviour was not disorderly and did not justify arrest.
[10]	The Judge went on to consider what developed thereafter and found that when the appellant picked up the weapons he behaved in a disorderly manner and thereafter resisted arrest. Of significance to the Judge’s findings was the fact that a police officer, Constable Cann, who arrived in the later stages of the confrontation gave evidence that he effectively re-arrested the appellant.
[11]	Representing himself, the appellant appealed both conviction and sentence. The matter first came before Simon France J who issued a Minute that records:

[12]	The appeal was heard by Keane J on 13 April 2005, and he dismissed it in a reserved decision dated 19 April 2005.
[13]	Keane J was faced with affidavits from the appellant and his former counsel which created a conflict as to whether or not the appellant had given instructions that he should be called to give evidence.
[14]	Keane J determined that he did not need to resolve that dispute because he asked the appellant what he would have said, assuming he had given evidence, in the District Court. He concluded:

[16]	On behalf of the appellant, Mr Cato’s submissions were narrowly focused. He said it was necessary that Keane J resolve the factual conflict regarding the extent of the appellant’s instructions to Mr Spring.
[17]	Mr Cato submitted that if there had been a finding that the appellant had instructed Mr Spring that he wished to give evidence, then a fair trial had been denied. Mr Cato submitted that the right to give evidence on one’s own behalf is guaranteed by the New Zealand Bill of Rights Act 1990, and that such a right is so fundamental the deprivation of it automatically leads to an unfair trial. He submitted that the deprivation of this fundamental right meant the Court did not need to go on and consider whether or not there had been a substantial miscarriage of justice.
[18]	Mr Burns submitted that the Judge’s approach was correct. For the purposes of the appellant’s argument Keane J was prepared to accept that he had given instructions to his counsel that he wished to give evidence. The Judge then obtained from the appellant details of what his evidence would have been and concluded, correctly, that no substantial miscarriage arose from the failure of the appellant to give evidence in the District Court.

[19]	Because of the way the submissions unfolded we have found it necessary to reframe the question posed on a two-stage basis.
[20]	The first question is, was the Judge obliged to make a factual finding as to the instructions given by the appellant to his counsel?

[23]	This Court has held that to amount to an instruction to counsel, something more than a general discussion or indication of a preferred course is required (R v S [1998] 3 NZLR 392). If Mr Spring had followed accepted practice and obtained written instructions, difficulties would not have arisen. The evidence may ultimately be decisive in this regard, but it is clear that on the affidavits there is a conflict between the appellant and Mr Spring as to whether or not counsel was instructed that the appellant wished to give evidence.
[24]	We also sympathise with Keane J who was confronted with an appellant in person attempting, with some difficulty, to convey his case.
[25]	The normal practice where issues such as the present arise is for the deponents of the conflicting affidavits to be cross examined and a factual ruling made. In the circumstances of this case we consider that such a course should have been adopted. There was no other way to resolve the conflict contained in the affidavits.
[26]	The challenge to Police Constable Cann’s evidence in this case was critical. The District Court Judge had found that the appellant’s earlier behaviour was not disorderly. He found the arrest in relation to that was not justified. It is clear that both the appellant, and his counsel, were taken by surprise during trial when the constable gave evidence that he had further arrested the appellant during the second stage of the incident and gave him his Bill of Rights advice while he restrained him on the ground.
[27]	In the circumstances of this case we are of the view that the Judge ought to have determined the factual dispute before him. It was not satisfactory, as the Crown suggested, to "leap frog" that stage and simply consider whether or not a miscarriage had occurred.
[28]	It is normal when affidavits are filed by accused persons alleging they should have given evidence to set out such evidence and the likely effect of it. In this case there is some mention in the appellant’s affidavits although, unsurprisingly, it is not fully developed.
[29]	What is apparent is that the Judge asked the appellant what he would have said and the response included a denial of Constable Cann’s evidence as to what role the appellant played. In our view that is a matter that ought to have been established by way of evidence, and factual findings made, before the Court determined whether there was any likelihood of a miscarriage of justice. In the absence of such factual findings it is impossible to conclude the extent of such evidence and its likely impact on the decider of facts.
[30]	Accordingly, we answer the two questions as follows:

[31]	In the light of the re-framed questions and the answers we have given it is unnecessary to deal with Mr Cato’s submission that effectively challenged the validity of the Privy Council’s decision in Howse v R [2005] UKPC 30; (2005) 21 CRNZ 823.
[32]	Mr Cato submitted that if this Court answered the questions in the affirmative given what occurred to the appellant’s son, the stress, the number of hearings and the lenient view the District Court Judge took in imposing sentence, the appropriate course was to quash the conviction.
[33]	While Mr Burns expressed sympathy for the position of the appellant he submitted the matter should be remitted to the High Court for determination.
[34]	We agree with the Crown. In our view it is appropriate that this matter be remitted to the High Court for a determination of the factual issues referred to above. It will be a matter for the Crown whether they wish to pursue the matter further.
[35]	Accordingly the questions are answered in the affirmative and the matter remitted to the High Court for a further hearing and findings.