Fairley v Police [2024] NZCA 617 (26 November 2024)

Last Updated: 2 December 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA523/2024 [2024] NZCA 617

	BETWEEN	DONALD SAMUEL FAIRLEY Applicant
	AND	NEW ZEALAND POLICE Respondent

Court:	Katz, Dunningham and Powell JJ
Counsel:	Applicant in person E J Hoskin for Respondent
Judgment: (On the papers)	26 November 2024 at 10.00 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

• [1] On 8 May 2024, following a Judge-alone trial in the District Court, Donald Fairley was convicted on a charge of assault and a charge of intentional damage of a motor vehicle.^[1]
• [2] Although Mr Fairley sought a discharge without conviction, he was sentenced to pay $600 as reparations on the charge of intentional damage and he was convicted and ordered to come up for sentence if called upon within six months on the charge of assault.^[2]
• [3] Mr Fairley appealed the refusal to discharge him without conviction to the High Court. That appeal was dismissed.^[3] He now seeks leave to bring a second appeal against conviction and sentence.^[4]

The offending

• [4] The offending involved a dispute which occurred between Mr Fairley and Mr Hamblin when queuing to buy food from a bakery on Dominion Road. At the time some COVID-19 restrictions were still in place and individuals had to line up outside the bakery with only limited numbers allowed in at a time. A dispute arose over whether Mr Hamblin queue-jumped. Mr Hamblin says he was ahead of Mr Fairley, whereas Mr Fairley says that Mr Hamblin cut in front of him.
• [5] After Mr Hamblin had purchased his items from the bakery and was leaving, Mr Fairley confronted him, swearing at him and speaking aggressively about his rudeness in cutting in. Mr Fairley then pulled the mask Mr Hamblin was wearing off his face and pushed him with enough force to knock him backwards.
• [6] It seems Mr Fairley was still not content to leave things alone and Mr Hamblin acknowledged he then kicked Mr Fairley as a way of distracting Mr Fairley so that he could run off, which he did.
• [7] Another person, Mr Daniels, initially tried to intervene and break up the confrontation and then, at the instigation of his wife, photographed Mr Fairley. Mr Fairley reacted by kicking Mrs Daniels’ car. Mr Fairley’s young daughter who was present, appeared distressed by the incident and Mrs Daniels and another woman went over to her to comfort her. When Mr Fairley returned, he said words to Mrs Daniels to the effect of: “Don’t think I won’t hit you too.” This formed the basis of a third charge against Mr Fairley of threatening to injure Mrs Daniels with intent to frighten.^[5]

The District Court decision

• [8] The Judge found the assault charge proved based on Mr Fairley’s grabbing of Mr Hamblin’s mask, while pushing him.^[6] The intentional damage was also found to be proved, noting Mr Fairley kicked the vehicle with enough force to cause a dent.^[7] Mr Fairley was acquitted on the charge of, with intent to frighten, threatening to injure, with the Judge not satisfied there was a threat to injure, that is, to do actual bodily harm, when the threat referenced the earlier incident of pushing and pulling off a mask rather than an actual punch.^[8]
• [9] The Judge sentenced Mr Fairley on the same day as summarised at [2] above. In declining the application for a discharge without conviction the Judge noted the charges “are not the most serious charges in the world”.^[9] He also noted that Mr Fairley had a limited criminal history. However, he was critical of Mr Fairley for not resolving the matters prior to trial to avoid the witnesses having to give evidence.^[10] He considered the noting of a conviction on each charge was the appropriate punishment and did not see “anything disproportionate in that”.^[11]

The High Court appeal

• [10] On appeal, Mr Fairley challenged the Judge’s refusal to discharge him without conviction. He argued that he had been provoked by Mr Hamblin queue-jumping, that he did not intend to cause damage to the car, and that the consequences of conviction were disproportionate to the gravity of the offending.
• [11] However, Walker J, was satisfied the Judge did not overstate the gravity of the offending, but rather, he accepted the gravity was relatively low.^[12]
• [12] Although Mr Fairley suggested there would be travel consequences for him of having a conviction, Walker J observed that “speculative future travel plans will not ordinarily be sufficient to justify a discharge without conviction”.^[13]
• [13] While Mr Fairley pointed to other cases where offending involving assaults had resulted in discharges without conviction, the Judge observed that such cases are “intensely fact sensitive to the extent that comparisons are not often useful”.^[14]
• [14] Finally, she observed that the reputational impact that a conviction would have was “within the ordinary consequences of a conviction and not out of all proportion to the gravity of the offence”.^[15]
• [15] In declining the appeal, the Judge said she did not consider there was any material error or miscarriage of justice arising out of the District Court’s decision.^[16]

Grounds for application for leave

• [16] The grounds of appeal that can be discerned from Mr Fairley’s notice of appeal and subsequent emails to the Court dated 30 May 2024, 11 and 13 June 2024, and 27 September 2024 are that:

(a) Wilful intent to damage was not established on the wilful damage charge.

(b) The consequences of conviction may extend to refinancing, including of the mortgage on his property. If he could not refinance he would be “financially in dire straits”.

(c) In terms of the gravity of the offending he notes that nobody was injured.

(d) Mr Hamblin jumped the queue and kicked Mr Fairley in the groin and he kicked Mrs Daniels’ car when Mr Daniels was right behind Mr Fairley with his phone to get Mr Daniels to back off.

(e) There are other cases involving assault charges where the defendant has been granted a discharge without conviction.

(f) He did not get offered diversion.

Legal principles applying to the grant of leave to bring a second appeal

• [17] Section 237(2) of the Criminal Procedure Act 2011 provides that this Court must not grant leave for a second appeal unless it is satisfied that:

(a) the appeal involves a matter of general or public importance; or

(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

• [18] The test is a high one.^[17] Applicants for leave to bring a second appeal are usually restricted to the grounds of appeal advanced in the first appellate court. An applicant will only be allowed to advance new grounds on a second appeal if there is a real possibility those grounds might demonstrate that a miscarriage of justice occurred at the trial, which went uncorrected on the first appeal.^[18] To the extent Mr Fairley appears to wish to challenge his conviction for wilful damage of the motor vehicle, this is a new ground of appeal and is outside the confines of his appeal against the refusal to grant a discharge without conviction.

Discussion

• [19] We are satisfied the proposed appeal does not raise a matter of general or public importance. It is a simple factual dispute which is confined to the facts of this case. Furthermore, we can see no real risk of a miscarriage of justice if leave to appeal is not granted.
• [20] In respect of the alleged lack of intent to damage the vehicle, Mr Fairley accepted that he deliberately kicked the back of the vehicle. He did so because he felt aggrieved by Mr Daniels following him and taking a photograph. The photos show an obvious dent in the back of the car. We understand Mr Fairley raises this as relevant to the gravity of the offending and not to whether he could be guilty of the charge. If it was the latter, s 11(2) of the Summary Offences Act 1981 states that a person “does an act intentionally if he does it intentionally or recklessly, and without lawful justification or excuse or claim of right”. Here, it is an irrefutable inference from the deliberateness of the kick in retaliation for perceived harassment, along with the significance of the dent that, at the very least, Mr Fairley was reckless as to whether he caused damage to the car when he kicked it. Furthermore, Mr Fairley did not give evidence to the contrary. Therefore, even if Mr Fairley was challenging his conviction on this basis, there is no real prospect of success. To the extent it goes to the gravity of the offending, the Judge was well aware of the circumstances in which the kick was rendered and took those into account.
• [21] The other matters that are raised in relation to the gravity of the offending, including that no one was injured and Mr Fairley’s view that his actions were provoked by the actions of other parties, were all clearly before the Court and understood and taken into account by the Judge in assessing the gravity of the offending for sentencing. Again, these do not individually, or collectively, constitute a matter of general or public importance or suggest the risk of a miscarriage of justice.
• [22] The next ground of appeal relates to the consequences of conviction. Mr Fairley raises the further consequence of a risk of being unable to refinance his mortgage. However, as Crown counsel point out in their memorandum, there is no evidence filed to this effect, nor has this submission been advanced before in these proceedings. Furthermore, it strikes us as inherently improbable that low-level convictions such as these would affect his ability to refinance. Again, this is not a matter of general or public importance, nor is there a risk of miscarriage of justice when this claim has not been raised before and has no factual foundation.
• [23] The outcome of other cases is also, as the High Court noted, not particularly useful given the fact-sensitive nature of these cases.
• [24] Finally, the observation that Mr Fairley feels he should have been dealt with by way of police diversion, rather than prosecution, cannot support an appeal against the Judge’s decision as to whether to discharge him without conviction when he has been found guilty of the charge.
• [25] Accordingly, we are satisfied that none of the matters Mr Fairley would wish to raise constitute grounds for granting leave to bring a second appeal. They raise no matter of general or public importance, nor do they suggest that a miscarriage of justice may have occurred.

Result

• [26] The application for leave to bring a second appeal is declined.

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent

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^[1] Summary Offences Act 1981, ss 9 and 11(1)(a).

^[2] Police v Fairley [2024] NZDC 10495 [District Court judgment] at [45]–[46].

^[3] Fairley v Police [2024] NZHC 1989 [High Court judgment].

^[4] Criminal Procedure Act 2011, ss 237 and 253. See Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[9].

^[5] Summary Offences Act, s 21(1)(a).

^[6] District Court judgment, above n 2, at [25]–[28].

^[7] At [36]–[40].

^[8] At [29]–[35].

^[9] At [43].

^[10] At [44].

^[11] At [45].

^[12] High Court judgment, above n 3, at [19].

^[13] At [20]–[21], citing Edwards v R [2015] NZCA 583 at [23]–[26].

^[14] High Court judgment, above n 3, at [22].

^[15] At [23].

^[16] At [24].

^[17] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36]–[38].

^[18] Singh v R [2020] NZCA 411 at [20]; S v R [2024] NZSC 140 at [6]; and Pavitt v R [2005] NZSC 24 at [4].