Buis v Police [2014] NZHC 2733 (26 September 2014)

Last Updated: 19 December 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000018 [2014] NZHC 2733

BETWEEN	SEAN JONATHON BUIS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 September 2014
Appearances:	J Turner for Appellant R D Smith for Respondent
Judgment:	26 September 2014

_{JUDGMENT OF GENDALL J}

Introduction

[1] The appellant Mr Buis has brought an appeal against conviction out of time.

[1] Mr Buis was convicted on one charge of burglary by Judge Smith in the Dunedin District Court on 1 May 2013 after a defended hearing.¹ Judge Thorburn then sentenced Mr Buis to 175 hours of community work and reparation of $50 on 6

August 2013.

[2] Mr Buis’ notice of appeal here is dated 17 June 2014 and is some nine months out of time. Appended to that notice is a letter from his counsel (who was also his counsel at the time of the defended hearing). The letter states:

Mr Buis did not appreciate that a time limit applied to the filing of an appeal despite being clearly advised of this and although he understand (sic) that an appeal was recommended by Counsel, he did not advise Counsel of his desire to appeal until recently. Given his young age and limited engagement with the justice system we request the appeal be granted.

¹ _{Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years’ imprisonment.}

BUIS v NEW ZEALAND POLICE [2014] NZHC 2733 [26 September 2014]

[3] Essentially, Mr Buis seeks leave to appeal this conviction and sentence out of time on the ground that the conviction was based upon unreliable identification evidence, and therefore resulted in a miscarriage of justice.

Background

[4] On 9 November 2012, Mr Buis and his associate Mr Batchelor were alleged to have entered a building in Elgin Road without authority and with intent to commit a crime in that building.

[5] The complainant, Mr Roy Young, at this Elgin Road property had stored two rims or mag tyres and a battery that were situated by a doorway. Mr Buis and Mr Batchelor were alleged to have gone to the property into an enclosed yard and removed the battery with rope handles. Mr Roy Young, with his son Mr Sean Young returned to the property. Mr Sean Young, saw two persons running out of the property, one carrying the car battery to a car parked outside the property.

[6] Mr Sean Young saw the person throw the battery into the boot of the car. The two of them then got into the car and drove off. Mr Sean Young said he recognised one of those persons as Mr Sean Buis. He called out the name “Sean” at the man who was throwing the battery into the boot of the car, and that person turned and looked briefly at him before getting into the car and driving off.

Judge Smith’s decision

[7] Judge Smith heard evidence from four witnesses, namely: (a) Mr Sean Young;

(b) Mr Roy Young, Mr Sean Young’s father;

(c) Constable Harwood, the officer in charge; and

(d) Richard Everett, the operations manager of Everett Enterprises

Dunedin.

[8] Judge Smith was satisfied that Mr Sean Young’s identification of Mr Buis was reliable because the evidence before her was that they went to primary school together and since that time, albeit infrequently, they had seen each other over the years. Mr Sean Young’s evidence was that the person he saw carrying the car battery was Mr Buis. Although he did concede it was “possible” that Mr Buis was not the person he saw taking the battery, Judge Smith was satisfied beyond a reasonable doubt that Mr Buis was that person.

[9] However, Judge Smith was not satisfied on the evidence that his co-offender Mr Batchelor had been present and identified on the Elgin Road property. She discharged him.

Application for leave to appeal out of time

[10] Mr Buis has sought leave to appeal his conviction and sentence almost one year out of time. The reasons for his long delay in pursuing an appeal are said to be:

(a) Mr Buis did not appreciate that a time limit applied to the filing of an appeal;

(b) Although he was advised by counsel at the time he should appeal, he did not instruct counsel that he wished to appeal the conviction until recently; and

(c) Mr Buis is young and has had limited involvement with the justice system.

Principles governing this appeal

[11] As the offence was committed before the Criminal Procedure Act 2011 came into force, the procedure is governed by the Summary Proceedings Act 1957 (the Act). The application to extend the time for filing of an appeal is brought pursuant to s 123 of the Act. The powers of this Court to extend time pursuant to s 123 are discretionary and are not expressly circumscribed in any way.

[12] The following matters are generally relevant:²

(a) whether the failure to file the necessary appeal papers within time has arisen in circumstances which ought reasonably to be excused;

(b) whether the proposed respondent has suffered any prejudice by the delay, being prejudice of a kind other than what is inherent in the extension of time itself;

(c) whether the proposed appeal has sufficient prima facie merit and in the case of an appeal on a point of law, sufficient prima facie utility and justice exists to warrant the extension of time sought; and

(d) such other matters that may bear on the exercise of the discretion in the particular case.

[13] Relevant considerations therefore include:³

(a) the strength of the proposed appeal and the practical utility of the remedy sought;

(b) the length of delay and the reasons for delay;

(c) the extent of the impact on others similarly affected and on the administration of justice, i.e. flood gates considerations; and

(d) the absence of prejudice to the Crown.

[14] After the prescribed 28 day period for criminal appeals expires, whether or not a convicted person can appeal depends on whether an extension is granted. A

_{person making an application for an extension is seeking an indulgence from the}

² _{Police v Hill [1990] 6 CRNZ 280 (HC).}

³ R v Knight [1998] 1 NZLR 583 (CA) at 589.

Court. The statute provides no guarantee that it will be granted.⁴ However, the touchstone is the interests of justice in the particular case.⁵

[15] As I have noted, in the present case Mr Buis did not appeal until June 2014, some nine months out of date.

[16] In Mika v Police⁶ and more recently in Denden v Police⁷ this Court noted that when deciding whether to extend the time for filing a notice of appeal against conviction the Court is guided by the following principles:

(a) The onus is on the applicant to show that there existed special circumstances why the sentence appealed from should not stand;

(b) The discretion is given essentially for the purpose of avoiding miscarriage of justice;

(c) All of the circumstances of the particular case have to be considered;

(d) One of the matters which must be established is that there is a real likelihood an appeal would succeed if leave is granted. Some authorities go so far as to say that the likelihood must be such that an appeal will establish a probability of success.⁸

[17] In addition, some explanation as to why the appeal has been filed late should be provided, normally in the form of an affidavit: Virendra v Police.⁹ In Mika Lang J likewise held that:

In a case where, as here, there has been a very significant delay, the reasons for the delay should also be explained.

_{(Citation omitted)}

⁴ _{R v Lee [2006] 3 NZLR 42 (CA) at [102]}

⁵ _{R v Slavich [2008] NZCA 116 at [8].}

⁶ _{Mika v Police [2012] NZHC 2668 (Lang J)}

⁷ _{Denden v Police High Court, Auckland, 4 August 2014, Duffy J [2014] NZHC 1814.}

⁸ _{Adapted from Cleggs Ltd v Department of Internal Affairs HC, Auckland, 5 September 1984.}

⁹ Virendra v Police HC, Wellington, 27 September 2011.

[18] In the present case there is no affidavit evidence provided as to delay and no particular explanation or substantial reasons provided as to why an appeal was not filed promptly. Indeed counsel has confirmed that “the Appellant was quite clearly advised” of the time limits involved and moreover “an appeal was recommended”.

[19] I find therefore that on the very limited information as to delay provided by Mr Buis to the Court and bearing in mind what I consider to be a general lack of merit in this appeal (as I conclude below) the criteria allowing this appeal out of time have not been satisfied here.

Merits

[20] I now turn to briefly consider the merits of Mr Buis’ appeal here.

[21] Section 119 of the Act prescribed the procedure on an appeal from the District Court to the High Court and noted that all general appeals were to be by way of a re-hearing.

Grounds of appeal

[22] Mr Buis’ appeal against conviction is based upon the ground that Judge Smith erred when she relied upon unreliable identification evidence to determine Mr Buis was the offender.

[23] Counsel for Mr Buis submits that Judge Smith failed to consider s 67A of the

Act, which states:

Where any evidence of identity is given against the defendant and the defendant disputes that evidence, the Court shall bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, the possibility that the witness may be mistaken.

Did Judge Smith err in her assessment of the evidence?

[24] In my view, Judge Smith did not err in her assessment of the evidence. She correctly found the elements of the charge had been proved beyond a reasonable doubt, that is:

(a) At least two offenders entered a building, namely an enclosed yard without authority;

(b) A battery was taken from the property in the way Mr Sean Young described; and

(c) Mr Buis was one of the offenders.

[25] The issue raised on appeal relates to the identification by Mr Sean Young of

Mr Buis as one of the offenders.

[26] Visual identification evidence is governed in part by s 45 of the Evidence Act

2006. The relevant parts of s 45 are:

(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.

...

(4) The circumstances referred to in the following paragraphs are good

reasons for not following a formal procedure...

[27] In Harney v R, the Supreme Court accepted that the list of “good reasons” in s 45(4) is not exhaustive.¹⁰ The Court agreed with R v Edmonds¹¹ that the fact that a witness recognises an alleged offender can constitute a good reason not to conduct a formal identification procedure.¹²

[28] The Court also noted that recognition will not necessarily provide a good reason for dispensing with a formal procedure, unless the appearance of the alleged offender was sufficiently known to the witness before the time of the alleged

_{offending that a formal procedure would be of no utility.}¹³

¹⁰ _{Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [25].}

¹¹ _{R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762.}

¹² _{Harney v Police, above n 6, at [17].}

¹³ Harney v Police, above n 6, at [27].

[29] The particular circumstances are to be determined by the Judge:¹⁴

(a) the circumstances in which the witness has previously seen the defendant and how; and

(b) what degree of cogency those prior circumstances demonstrate that the witness had the capacity to identify the defendant with accuracy.

[30] In addition, the Supreme Court noted that a formal procedure may have value if the last contact between the witness and the defendant was not recent, but the mere fact that it was not recent will not in itself mandate the use of a formal procedure.¹⁵

[31] In the present case, no photo montage was conducted, as Constable Harwood accepted Mr Sean Young’s assessment that he recognised Mr Buis as one of the offenders. The onus was on Mr Buis at the Judge-alone hearing to prove on the balance of probabilities that Mr Sean Young’s recognition of him as one of the offenders was unreliable.

[32] In my assessment, the evidence before Judge Smith entitled her to reach the conclusions which she reached for the following reasons:

(a) Mr Sean Young went to primary school for a number of years with

Mr Buis;

(b) since then Mr Sean Young had seen Mr Buis from time to time over the years;

(c) the last time Mr Sean Young saw Mr Buis was three years ago in the

Octagon when he may have spoken to Mr Buis; and

(d) although Mr Sean Young said that it was possible that it was not

_{Mr Buis who he saw, he thought that it was.}

¹⁴ _{At [28].}

¹⁵ At [29].

[33] The circumstances in which Mr Sean Young identified Mr Buis fall within the Harney principles governing recognition under s 45(4) of the Evidence Act 2006. There was no doubt in this case that Mr Buis and Mr Sean Young knew each other. Although the last contact Mr Sean Young had with Mr Buis was three years earlier,¹⁶

Mr Buis failed to show on the balance of probabilities that Mr Sean Young could have been mistaken about his identity. The evidence accepted by Judge Smith amounted to recognition of Mr Buis by Mr Sean Young as a person known to him.

[34] Section 67A of the Act does reflect a need for caution before an accused is convicted of an offence, based wholly or substantially on visual evidence.¹⁷ It applies in summary cases held before a District Court Judge alone.¹⁸ As to the requirements of that section Morris J in Waaka v Police said that the Judge is not required to either specifically refer to the section or quote its provisions when it is

clear that he or she has taken the provisions into account when considering the evidence.¹⁹

[35] The omission by Judge Smith in this instance to explicitly warn herself or refer to the section will not matter if it is clear that she proceeded with caution and took the possibility of mistake into consideration.²⁰

[36] In my assessment, Judge Smith proceeded with caution when she acknowledged that Mr Sean Young had said it was possible that he was mistaken. I am satisfied that Judge Smith was entitled to accept Mr Sean Young’s evidence. She carefully considered Mr Sean Young’s evidence, which she found to be reliable and credible.

_{[37] Accordingly, there was no miscarriage of justice.}

¹⁶ _{Harney v Police, above n 6, at [32].}

¹⁷ Tamati v Police HC Hamilton CRI-2011-491-54, 25 August 2011 and R v Turaki [2009] NZCA

_310..

¹⁸ _{Section 126 of the Evidence Act 2006 applies when there is a jury.}

¹⁹ Waaka v Police HC Rotorua AP 87.94, 11 November 1994; Luke v Police HC Rotorua CRI-

2003-463-56, 17 March 2004 at [23]; Talbot-Maarhuis v Police HC Wellington CRI-2008-485-

_{12, 18 June 2008.}

²⁰ Peneha v Police [2012] NZHC 2554 at [30].

Conclusion

[38] For all the reasons I have outlined above this application for leave to appeal

Mr Buis’ conviction out of time is dismissed.

...................................................

Gendall J

Solicitors:

Public Defence Service, Dunedin

RPB Law, Dunedin