Brown v Police [2016] NZHC 374 (7 March 2016)

Last Updated: 18 March 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000382 [2016] NZHC 374

BETWEEN	RUKA BROWN Appellant
AND	NZ POLICE Respondent

Hearing:	7 March 2016
Appearances:	Appellant in person H Clark for Respondent
Judgment:	7 March 2016

_{JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie on 7 March 2016 at 4.30pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_{Date:.....................................}

Solicitors/counsel:

Crown Solicitors, Auckland

BROWN v NZ POLICE [2016] NZHC 374 [7 March 2016]

Introduction

[1] On 9 February 2015 Mr Brown pleaded guilty to one charge of indecent assault. On 11 February 2015 he was convicted and sentenced to six months’ imprisonment by Judge R Collins in the Auckland District Court.¹

[2] Mr Brown appealed his conviction and sentence.

[3] The notice of appeal is dated 28 October 2015. It was only received by this

Court on 26 November 2015. It is significantly out of time.

[4] Pursuant to r 8.5 of the Criminal Procedure Rules 2012, a notice given out of time is to be treated as an application for an extension of time. The Court has the power to extend the time for filing under r 1.7.

[5] Ms Clark for the respondent accepted that there is no prejudice to the respondent. She was neutral on the application for an extension of time.

[6] In R v Slavich,² the Court of Appeal stated that there are two questions that fall for consideration when an appeal is filed out of time:

(a) why was the appeal filed late?

(b) what, if any, merit does the prospective appeal appear to have?

[7] No reason has been advanced for the late filing. I proceed to consider the merit of the prospective appeal.

Grounds of Appeal

[8] When the appeal was called, Mr Brown withdrew his appeal against sentence. It became clear that his concern is that the conviction may prompt the Department of Corrections into applying for a further extended supervision order against him. He

_{became the subject of such an order in December 2005. It expired in December}

¹ _{Police v Brown [2015] NZDC 3654.}

² R v Slavich [2008] NZCA 116 at [14].

2015. Mr Brown clearly resented the order. He feels that he no longer poses a threat to the community and that no fresh order should be sought or made. He fears that the conviction may trigger a fresh application.

[9] Insofar as can be gleaned from the documents Mr Brown has filed, the grounds of appeal appear to be as follows:

(a) There was no inappropriate touching, no violence, no DNA and no medical evidence to support the conviction.

(b) That the elements of the offence of indecent assault were not met.

(c) That Judge Collins erred in assessing the evidence to such an extent that a miscarriage of justice occurred.

Summary of Facts

[10] The summary of facts to which Mr Brown pleaded guilty records as follows:

(a) The victim was a tourist in New Zealand. She spoke English as a second language.

(b) The victim and Mr Brown were unknown to each other.

(c) On Friday 12 December 2014, at about 5.45pm, the victim was sitting by herself in Fort Street in central Auckland.

(d) Mr Brown approached the victim and began screaming sexual obscenities at her. One phrase used by Mr Brown repeatedly was “Bitch, open your legs”. Mr Brown was in very close proximity to the victim. She genuinely feared he was going to force himself on her.

(e) Mr Brown used the fact that the victim was seated and in a vulnerable position. He began thrusting his hips in her face and gesturing to her

to give him a “blow job”. He was only inches from her and she was

easily within his reach.

(f) Mr Brown’s tirade of abuse and sexual innuendo continued until three male passers by forced him away from the victim. He then poured beer from a can he was holding onto the victim and spat on her. His spittle landed on her neck and chest.

(g) The offending lasted approximately three minutes.

District Court Decision

[11] Judge Collins considered that no physical contact occurred, but that nevertheless the assault fell within the extended definition of the word “assault” in the Crimes Act 1961. The Judge recorded that both he and the amicus curiae appointed – a Mr Cruar – had stressed to Mr Brown that physical contact was not necessary for the charge to be proved. He observed that Mr Brown was distressed throughout the proceedings. He recorded that Mr Brown was however fully advised, that he elected to represent himself when the charge was put to him and that he entered a plea of guilty.

[12] The Judge recorded that Mr Brown sought to vacate that plea when he appeared for sentence two days later. He was not satisfied that any of the grounds which would allow somebody to vacate a plea were made out, and he refused the application.

[13] The Judge went on to observe that Mr Brown was then subject to an extended supervision order, that he resented that fact and that he had a view towards the probation office which was not positive. He also noted that Mr Brown had been in custody for some two months, and that therefore, in effect, he had served an effective sentence of four months’ imprisonment. He observed that a community based sentence³ was a problem, because Mr Brown had no suitable address. The Judge

_{recorded that he had advised Mr Brown that if he were to impose a short term of}

³ The Judge used the word “bail”. This must have been an error. A conviction had been entered

and bail was no longer in issue.

imprisonment, it would allow time for the probation office to work with Mr Brown to organise suitable living arrangements once he was released. He considered that that was the only practicable and humane approach for Mr Brown. He therefore sentenced Mr Brown to a term of six months’ imprisonment. He recorded that that meant that Mr Brown would be released within a month. He did not impose any post release conditions, rather noting that he would still be subject to the extended supervision order when he was released.

Appeal Against Conviction

[14] Section 229 of the Criminal Procedure Act 2011 sets out a defendant’s right to appeal against conviction. Under s 230 of that Act, Mr Brown’s appeal to this Court is a first appeal from a Judge alone trial.

[15] Although the conviction appeal followed from a guilty plea, s 232 of the Act enables an appeal against conviction to be brought where a guilty plea has been entered. Relevantly it provides as follows:

232 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

...

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c) in any case, a miscarriage of justice has occurred for any reason.

(3) The first appeal court must dismiss a first appeal under this subpart in any other case.

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

[16] As can be seen the Court must be satisfied that a miscarriage of justice has occurred in the trial. The word “trial” includes a proceeding in which the appellant pleaded guilty. Not every error or irregularity will cause a miscarriage of justice.⁴

The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b). A real risk that the outcome was affected will exist when “there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong”.⁵ As a result, an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe, but rather that there is a real possibility that the verdict is unsafe.

[17] While a conviction appeal can be lodged where a defendant has pleaded guilty, it is only in exceptional circumstances that an appeal against conviction will be entertained if an appellant entered a guilty plea. The Court of Appeal in R v Le Page⁶ held that the principles for appealing convictions following a guilty plea are as follows:

[16] ... it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, ...

[17] A miscarriage of justice will be indicated in at least three broad situations ... The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element. ...

[18] A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged. Examples are where a charge required special leave and such was not obtained, a charge was out of time or where as a matter of law the facts are insufficient to establish an essential ingredient of the offence. ...

⁴ _{Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].}

⁵ _{R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 (SC) at [110].}

⁶ R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA); and see R v Merrilees [2009] NZCA 59.

[19] The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law. ...

[18] If trial counsel errs in his or her advice to a defendant as to the non- availability of certain defences or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a defendant to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced, then that may also justify an appellate Court in concluding that there has been a miscarriage, such that the conviction should be overturned.⁷

Analysis

[19] Mr Brown’s written submissions focussed largely on the credibility and consistency of the witnesses in the statements they made to the police. He appeared to suggest that the Judge had erred in assessing the evidence to such an extent that a miscarriage of justice had occurred.

[20] There is an obvious difficulty with this submission. Given that Mr Brown pleaded guilty to the charge on the basis of a summary of facts, Judge Collins did not assess the evidence at all. To the extent that Mr Brown’s appeal challenges the statements made by witnesses and their credibility, it cannot succeed. The credibility of the victim, the witness who made a statement and the police officer who arrested Mr Brown, was never put in issue, and no findings were made as to their credibility.

[21] I now turn to consider whether or not Mr Brown appreciated the nature of, or did not intend to plead guilty to, the charge of indecent assault.

[22] A more relaxed view can be taken if a defendant was unrepresented when the plea was made.⁸ However in the present case, it is clear from the Judge’s sentencing notes that Mr Brown was fully advised and that he elected to represent himself when the charge was put to him and he entered his plea. Amicus curiae had been appointed and he was advising Mr Brown. I asked Mr Brown about this in the

_{course of the appeal hearing. He confirmed that a lawyer was appointed for him and}

⁷ _{R v Merrilees, above n 6, at [34].}

⁸ Udy v Police [1963] NZPoliceLawRp 17; [1964] NZLR 235 (SC).

that he spoke to the lawyer. He did suggest that the advice he received was relatively limited, and he stressed that he did not receive a copy of one of the witness statements until shortly before he entered his guilty plea. There was no criticism however of the advice given and in any event, it is clear that the Judge himself made sure that Mr Brown was fully advised before he entered the plea. I have no doubt that Judge Collins would have granted Mr Brown an adjournment if he had sought time to consider the witness statement belatedly made available.

[23] Mr Brown has not put before the Court anything which suggests that he did not understand the charge he was pleading guilty to, or that he did not appreciate the nature of the charge. There is no proper basis on which the Court could conclude that there has been a miscarriage of justice in this regard.

[24] I now turn to consider whether or not Mr Brown could have been convicted on the admitted facts.

[25] An indecent assault requires that there be an assault, which is indecent.

[26] The definition of the word “assault” in the Crimes Act is as follows:

2 Interpretation

(1) In this Act, unless the context otherwise requires,—

...

assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose; and to assault has a corresponding meaning.

[27] Here, there was an intentional application of force. Mr Brown poured beer on the victim and spat at her. His spittle landed on her chest and neck. A witness, a Mr Greave, went further. He said in his statement to the police that, as the victim got up from her seat, Mr Brown grabbed at her clothes around the chest area and that she got shoved by him. He also said that Mr Brown pushed the victim in the chest and

that she toppled over a little and at this point, Mr Brown threw a beer can at her. He said that the beer can hit the victim in the chest and that she then fell to the ground.

[28] The summary of facts did not follow Mr Greave’s police statement. Rather it was based on the victim’s statement to the police. The victim stated that Mr Brown threw the contents of a can of beer at her when she stood up and that he spat on her.

[29] In my judgment, on either version of events, there was an intentional application of force by Mr Brown to the person of the victim.

[30] Further, it is clear from the summary of facts that Mr Brown threatened to apply force to the victim. He screamed sexual obscenities at her. He yelled at her to open her legs. He thrust his hips and groin in her face and gestured to her to give him a “blow job”. He was very close to her throughout. She believed on reasonable grounds that he had the ability to affect his purposes. There was clearly a threat to apply force to the victim’s person.

[31] Physical contact is not a necessary element of a charge of indecent assault.⁹

[32] Even if I am wrong in my view that the pouring of beer and spitting were intentional applications of force, the fact that Mr Brown screamed sexual obscenities at the victim, that he was in very close proximity to her and that she feared that he was going to force himself on her, suffices to bring the offending within the definition of the word “assault” in s 2(1) of the Crimes Act.

[33] There can be no doubt that Mr Brown’s actions would be regarded by right

thinking members of the community as being indecent.

[34] In my view, there was sufficient in the summary of facts, to make out the elements of the offence of indecent assault.

⁹ Smith v R [2012] NZCA 419.

[35] It follows that there has been no manifest injustice. The proposed appeal has no prospect of success. I decline leave to Mr Brown to bring his appeal out of time. The appeal would fail.

Postscript

[36] As I have noted above, Mr Brown appealed the conviction because he is concerned that the Department of Corrections may apply for a further extended supervision order. Insofar as I am aware, no such application has been made to date. Mr Brown is still in custody because the Department alleges that he breached the earlier supervision order which has since expired. If the Department of Corrections makes fresh application, then the same will have to be considered by the Court and the various provisions applicable to extended supervision orders contained in the

_{Sentencing Act 2002 will apply.}

Solicitors/counsel:

Crown Solicitors, Auckland

Wylie J