Downey v Police [2015] NZHC 362 (4 March 2015)

Last Updated: 11 March 2015

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2014-488-52 [2015] NZHC 362

BETWEEN	MICHAEL RAYMOND DOWNEY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4 March 2015
Counsel:	J A G Moroney for Appellant J P Scott for Respondent
Judgment:	4 March 2015

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Thode Utting & Co, Northcote, Auckland

_{Crown Solicitor, Whangarei}

DOWNEY v NEW ZEALAND POLICE [2015] NZHC 362 [4 March 2015]

Introduction

[1] Mr Downey was charged with two offences in the alternative. The first was that with intent to obtain a pecuniary advantage he dishonestly and without claim of right used a document.¹ The alternative charge was that he made a declaration before a Justice of the Peace which would have amounted to perjury if made on oath in a judicial proceeding.²

[2] The charges were heard by Judge Davis in the District Court at Dargaville on

7 August 2014. The Judge found Mr Downey guilty on the charge of dishonestly using a document. He made no finding on the alternative charge. A conviction was entered on the first.³

[3] Mr Downey appeals against both conviction and sentence. In order to allow an appeal against conviction, I must be satisfied for the purpose of this case that there has been a miscarriage of justice.⁴ There are two aspects to that in the case of a Judge-alone trial. Section 232(2)(b) of the Criminal Procedure Act 2011 (the Act) refers to an error in the Judge’s assessment of the evidence. Section 232(2)(c) refers to the occurrence of miscarriage for any other reason.

[4] Relevantly, for present purposes the term “miscarriage of justice” (as defined by s 232(4)), means any error that “has created a real risk that the outcome of the trial was affected”. In short, before an appeal is allowed I must be satisfied that the finding of guilt was unsafe.⁵

[5] The appeal against sentence may be allowed if I were satisfied either that there was an error in the sentence imposed or that a different sentence should be imposed. In any other circumstances, s 250(3) of the Act requires the first appeal

_{Court to dismiss the appeal.}

¹ _{Crimes Act 1961, s 228(b).}

² _{Ibid, s 111.}

³ _{New Zealand Police v Downey DC Dargaville CRI-2013-011-288, 7 August 2014 (Judge Davis).}

⁴ _{Criminal Procedure Act 2011, s 232(2)(b) and (c).}

5. Generally, see Sungsuwan v R [2005] NZSC 57; [2006] 1 NZLR 730 (SC) at paras [7]–[9] (Elias CJ), [70] (Gault, Keith and Blanchard JJ) and [110] (Tipping J).

[6] With those observations about the jurisdiction of this Court on a first appeal I

consider first the conviction appeal.

Conviction appeal

[7] The background to the alleged offending was that Mr Downey attended an address in Ruawai in Northland, in an attempt serve documents on a Ms Butt. Mr Downey was a professional process server. It is clear that Mr Downey was present in the vicinity of Ms Butt’s address. The dispute was whether he actually served Ms Butt or not. The consequence of a finding that he did not serve Ms Butt was that a subsequent report and an affidavit of service sworn were false, if service had not been effected.

[8] Mr Moroney, (who did not appear in the District Court) for Mr Downey, has argued the conviction appeal on the basis of an error by counsel who appeared at that hearing. Although no affidavit has been sworn by a witness (Mr Swan) whom Mr Moroney submits ought to have been called on Mr Downey’s behalf, Mr Scott, for the Police, had no objection to the letter from the witness being taken into account as if it were a sworn document. That stance was taken because on the Police view of the facts, Mr Swan’s proposed evidence could not make any difference to the findings of fact made by the District Court Judge. Mr Swan is a director of the company that instructed Mr Downey to serve the relevant documents.

[9] Judge Davis made a finding, despite evidence given by Mr Downey, that he had not served Ms Butt. Although Mr Downey said in evidence that he had served Ms Butt, that evidence appears to have been retracted to a relatively minor extent when he was cross-examined, the point raised by Mr Moroney is that Mr Swan could have given evidence that Mr Downey would have been paid for his endeavours irrespective of whether service had been effected or not.

[10] It is clear that Judge Davis formed an adverse view of Mr Downey’s credibility. In part that was because of efforts to recant from his firm position that he had served Ms Butt to the more equivocal possibility that he served another person and mistakenly took her to be Ms Butt. The Judge considered that that attempt to distance himself from his original statement to the Police and his evidence in chief

on 8 August 2013 with the Police.⁶

[11] The difficulty in the way of Mr Moroney’s submission is that even if Mr Swan’s proposed evidence were accepted in full, it does not explain why Mr Downey would have prepared and filed a report and sworn an affidavit of service in close proximity to the events in issue saying that he had definitely served Ms Butt. Indeed, if it were in his interests to report non-service because he could have been paid in the future for further attempts to serve, it is difficult to understand why Mr Downey would have reported that service had been effected.

[12] Whether Mr Downey was entitled to a fee, irrespective of whether Ms Butt had or had not been served, is irrelevant for the purposes of a charge of this nature. That was made clear by the Supreme Court in R v Hayes.⁷

[13] The point involving entitlement was not the only evidence on which Judge Davis relied to make adverse findings of credibility against Mr Davis. He accepted evidence from Ms Butt that she was away from the property in Ruawai at the time that attempts to serve were being made. Judge Davis regarded the suggestion that Ms Butt was not telling the truth as one which would have required her to have “cooked up an elaborate scheme whereby she has gone back to Auckland to make up

this story to effectively mask the fact that she was served with documents”.⁸ The

Judge concluded by saying that he was satisfied beyond reasonable doubt that Ms Butt had not been served. He took the view that Mr Downey had not served anyone that day.

[14] As I have said, unless Mr Downey was dishonest it is incomprehensible that he would give a report saying that Ms Butt had been served, when she had not. The fact that he then swore an affidavit to confirm the position, in close proximity to when service was allegedly effected, gives weight to his intention to obtain a pecuniary advantage, whether or not he would have been entitled to receive a fee in

_{any event.}

⁶ _{New Zealand Police v Downey DC Dargaville CRI-2013-011-288, 7 August 2014, at para [26].}

⁷ _{R v Hayes [2008] NZSC 3; [2008] 2 NZLR 321 (SC), at para [12] per Tipping J, for the Court..}

⁸ New Zealand Police v Downey DC Dargaville CRI-2013-011-288, 7 August 2014, at para [27].

raise any miscarriage of justice for the purposes of s 232(2)(b) or (c) of the Act. There is in my opinion no real risk that the outcome of the trial would have been affected by Mr Swan’s evidence even if it had been accepted in its totality. The appeal against conviction is dismissed.

Sentence appeal

[16] The appeal against sentence can be dealt with shortly. Mr Downey was sentenced by Judge Davis on 5 December 2014.⁹ It is clear that the Judge regarded the offending as serious. As he said “it cuts to the very heart of the administration of justice and the manner in which Court proceedings are conducted in this country”. Process servers should conduct themselves with, he said, “the utmost of integrity”.¹⁰

[17] For that reason, the Judge imposed a sentence of 12 months imprisonment. As no address was given that was suitable for electronic monitoring he was not prepared to consider a sentence of home detention. The Judge did, however, reserve leave for an application to substitute home detention to be made.¹¹

[18] On the facts as the Judge found them, if imprisonment had not been imposed, it is clear that home detention could have been the only sentence. That being so, Mr Downey has the right to go back to the District Court to substitute that sentence.

[19] In the way in which the Judge structured the sentence, there can be no error in the imposition of a period of imprisonment of 12 months reserving leave to apply to substitute home detention. That being so, there was no error in the imposition of the sentence of imprisonment. The sentence appeal too must fail.

Result

[20] For those reasons, the appeals against both conviction and sentence are dismissed.

⁹ _{New Zealand Police v Downey DC Dargaville CRI-2013-011-288, 5 December 2014.}

¹⁰ _{Ibid, at para [7].}

¹¹ Ibid, at para [19].

P R Heath J