Burchell v Police [2012] NZHC 1735 (17 July 2012)

Last Updated: 15 August 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-188 [2012] NZHC 1735

BETWEEN LLEWELLYN WILLIAM BURCHELL Appellant

AND THE POLICE Respondent

Hearing: 16 July 2012

Appearances: Appellant in person

J M Jelas for respondent

Judgment: 17 July 2012

_{INTERIM JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4.30 pm on Tuesday 17 July 2012

Solicitors/parties

L W Burchell, 5 Sapphire Place, Bayview, Auckland

Crown Solicitor Auckland [e-mail] :

BURCHELL V POLICE HC AK CRI 2012-404-188 [17 July 2012]

[1] This is an application by Mr Burchell for leave to appeal against his conviction on a charge of failing to comply with release conditions. Judge Morris, sitting in the North Shore District Court on 4 May 2011, convicted the applicant and ordered him to come up for sentence within five months if called upon. Mr Burchell had pleaded guilty.

[2] He says that at the time of his conviction there was a degree of confusion about the precise charge to which he was pleading guilty, although the Judge read out the charge just before he entered a plea of guilty. He had previously served a sentence of community work on charges of assault. Although he says that he had completed that sentence in its entirety, the Probation Service nevertheless had earlier made an application to the District Court for an order cancelling the sentence of community work and seeking a substituted sentence on the grounds that Mr Burchell had failed to comply with the requirements of the community work sanction. It now appears to be common ground that Mr Burchell did in fact complete the whole of his sentence of community work.

[3] Ultimately, the application for cancellation of the sentence of community work was withdrawn by leave of a District Court Judge, but a degree of complexity surrounded Mr Burchell’s various appearances on a variety of matters, and he says he understood his appearance before Judge Morris on 4 May 2011 to be connected in some way with matters other than the charge of failing to comply with release conditions. The notice of appeal in its present form specifies grounds which are, for the most part, related to the sentence of community work.

[4] During the course of argument before me, Mr Burchell accepted that the community work issue on the one hand, and the release condition case on the other, are entirely separate proceedings. The synopsis of argument lodged with the Court by Ms Jelas, for the respondent, was largely devoted to establishing that state of affairs. That is not surprising, given the contents of the notice of appeal.

[5] Mr Burchell now accepts that the proceedings on 4 May 2011 were concerned with the charge of failing to comply with release conditions (by reporting

at stipulated times to a probation officer), but he says he was unaware of that on

4 May. Instead, encouraged by amicus, he pleaded guilty to a charge which he thought was somehow a remnant of the community work matter. He says he has a defence to a charge of failing to comply with his release conditions, in that he did in fact report to a probation officer as and when directed.

[6] Against that background, I record Mr Burchell’s acceptance that he could not succeed on his appeal, even if leave is granted, if he remains reliant on the presently stipulated grounds. Insofar as those grounds are relied upon, leave to appeal is accordingly refused.

[7] However, it is important that the application for leave, when finally determined, focuses upon the matters truly in issue between the parties. Whether or not Mr Burchell has sufficient grounds to appeal will turn to a considerable degree on the state of the Probation Office records.

[8] During the hearing before me, the Court took a brief adjournment to enable Ms Jelas to confer with Probation Office staff in the hope that all of the relevant documentary material may be available at short notice. Although some documents were produced in a matter of minutes, the Court is advised that much of the material is archived, and that time will be needed to recover it.

[9] Ms Jelas has responsibly agreed to the reconstitution of the leave application, and the notice of appeal and the fixing of an amended timetable. In accordance with those arrangements, I direct that:

(a) The Probation Service produce to the Court and to Mr Burchell the whole of its records concerning compliance by Mr Burchell with his release conditions. Such disclosure is to be made on or before Friday

3 August 2012;

(b) Mr Burchell is granted leave to file and serve an amended notice of appeal, on or before Friday 17 August 2012. Such amended notice is to specify as a ground of appeal that Mr Burchell did in fact adhere to

the requirements of the Probation Service in respect of his release conditions. The notice may also include such other grounds of appeal as may appear from the disclosure to be made to him by the Probation Service;

(c) The appeal is to be listed in the Appeals List at 9 am on Friday

24 August 2012 for further directions concerning the hearing of the adjourned application for leave to appeal;

(d) Either party may apply to a Duty Judge upon giving at least two clear business days’ notice, should a need arise to obtain judicial direction prior to 24 August;

[10] There are three further matters:

(a) For the time being this appeal is to appear in the Court list as “B v Police” rather than “Burchell v Police” in accordance with the practice currently being adopted;

(b) Ms Jelas confirms that, should it appear from the material then before the Court that Mr Burchell has an arguable case for the grant of leave based upon the strength of his underlying argument, then the respondent will not argue that leave should nevertheless be refused by reason of delay;

(c) A copy of this judgment is to be sent to Mr Burchell forthwith. He says he has been routinely missing court documents and asks that a copy of the judgment be sent to him at his residential address, namely:

5 Sapphire Place, Bayview, Auckland, by courier. There will be a direction accordingly.

C J Allan J