Brown v Police [2018] NZHC 1083 (17 May 2018)

Last Updated: 1 August 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-000073 [2018] NZHC 1083

BETWEEN	COLIN WILLIAM BROWN Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	15 May 2018
Appearances:	C W Brown in person, Applicant J J Rhodes for Respondent
Judgment:	17 May 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 17 May 2018 at 11.00am Pursuant to Rule 11.5 of the High Court Rules

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

Registrar/Deputy Registrar

Parties/Solicitors:

C W Brown, Auckland
Kayes Fletcher Walker, Manukau

BROWN v NEW ZEALAND POLICE [2018] NZHC 1083 [17 May 2018]

Introduction

[1] Colin Brown, who is self-represented, applies for leave to appeal against his convictions, on three charges of assault. The complainant, Raewyn Watkins, was Mr Brown’s partner at the time. The Police had been called to an incident at Mr Brown’s residence. Mr Brown was arrested, subsequently tried and convicted.

[2] The highly unusual aspect of Mr Brown’s appeal is that Mr Brown was arrested on 10 December 1997, his trial took place in the District Court at Otahuhu on 26 June 1998 and Mr Brown was sentenced in the District Court on 7 September 1998. On each charge Mr Brown was ordered to pay a fine of $150 and Court costs of $120.

[3] The grounds Mr Brown advances for his appeal are that he was denied the right to a fair trial through the non-disclosure by police of documents later obtained by a request under the Official Information Act 1982 and that those documents cast doubt on the credibility of the complainant, Ms Watkins, and on the credibility of a police sergeant who prepared the Police Summary of Facts before trial. Mr Brown also says the trial judge made a mistake over who owned the premises where the incident happened and he says that the fact that the police sergeant who arrested him was later alleged to have been involved with illegal drugs casts doubt on the safety of Mr Brown’s conviction.

[4] Mr Brown has applied for an extension of time to bring his appeal. That application is before this Court.

[5] The police oppose Mr Brown’s application. They say:

(a) The delay is extraordinary;

(b) There has been no adequate explanation for the delay;

(c) The appeal lacks merit;
(d) The police are prejudiced by the delay, not least because the police file has been destroyed in accordance with standard document management protocols and they have been unable to obtain the original court file.

[6] Following the hearing before me on 15 May 2018, I dismissed Mr Brown appeal and said my reasons would follow in writing.

Applicable law and procedure

[7] The proceeding that led to Mr Brown’s convictions began prior to the enactment of the Criminal Procedure Act 2011 and in accordance with s 397(2) of that Act Mr Brown’s appeal must be heard and determined in accordance with the Summary Proceedings Act 1957 as if it is still in force.

[8] Under s 115 of the Summary Proceedings Act, Mr Brown has a general right of appeal to the High Court against his convictions. Under s 116 of that Act, any appeal had to be lodged within 28 days of Mr Brown being sentenced, that is, by 5 October 1998.

[9] Under s 123 of the Summary Proceedings Act, the High Court can extend the time for filing a notice of appeal. In accordance with the decision of the Court of Appeal in R v Slavich,¹ in applying that section, the key questions are:

(a) why was the appeal filed late?

(b) what merit does the prospective appeal have?

[10] In that decision, the Court stated:

[13] It is for the appellant to provide sufficient information for the Court to determine whether it is in the interests of justice for leave to be granted... Where the appellant fails to provide a satisfactory explanation for the delay, “the only ground...on which the delay could be overlooked is if the proposed appeal is overwhelming on the merits.”...

¹ R v Slavich [2008] NZCA 116 at [13] and [14].

[14] In the simplest terms, extension of time applications will routinely reduce to two heads. Firstly, why was the appeal filed late? Secondly, what, if any merit, does the prospective appeal appear to have?

[11] These are the same questions Lang J, in his Minute of 23 March 2018, directed Mr Brown to address in a letter to the Crown in advance of the hearing. The questions Lang J directed Mr Brown to address were:

(a) The reasons why it has taken so long or Mr Brown to file his appeal;

(b) The reasons why it is in the interests of justice for the appeal now to be heard.

[12] Mr Brown did not provide a letter as directed by Lang J but submitted various documents – some generated by himself and some copies of documents, correspondence and articles by others – as his submissions in support of his application. That material did not answer directly the questions posed by Lang J. Accordingly, at the hearing on 15 May 2018 I asked Mr Brown to answer those questions. He did so as follows.

Reasons for delay

[13] Mr Brown said there were a number of reasons for the delay:

(a) Despite the conviction, he had maintained contact with the complainant over a period of approximately seven months after he had been sentenced. In those circumstances, it would have been difficult to have challenged the complainant’s evidence.

(b) He had been dumbfounded by the outcome of the trial and had not known where to turn.

(c) In August 2002, he had become aware from a newspaper story of allegations of impropriety against Sergeant Richards, who had been the officer in charge of Mr Brown’s arrest in December 1997. In Mr
Brown’s view, that raised questions about the safety of Mr Brown’s conviction.

(d) Following these revelations, Mr Brown had made a request under the Official Information Act for information held on the police and Court files. This disclosed that there had been six family violence reports following police call outs to Mr Brown’s address which contained serious factual errors about who had called the police, the nature of the alternations and the extent of injuries suffered by Mr Brown and Ms Watkins in those altercations.

[14] I put it to Mr Brown that none of these reasons adequately explained the 20- year gap between his sentencing and his appeal. Mr Brown acknowledged that his major hurdle was to explain adequately the delay in coming to Court. He also acknowledged being told by the judge at the time that he had 28 days in which to bring his appeal and that he had consulted a lawyer in 2003 who had not been encouraging of his prospects of succeeding with an appeal. Mr Brown also said, however, that he had continued his quest for justice in the 15-year period between 2003 and 2018 but had done so by engaging with politicians and others.

[15] Mr Rhodes, counsel for the police, submitted that the 20 year delay could be seen as two distinct periods: the initial five years following Mr Brown’s sentencing and the 15 year period after Mr Brown had received the family violence reports and other material following his Official Information Act inquiries. Even if the Court took the view that the production of that material established a new basis for an appeal that had not been readily ascertainable beforehand, that still did not provide an adequate explanation for the subsequent 15 year delay. Moreover, if Mr Brown had brought his appeal within the first five years of his sentencing, the prejudice to the police’s response to such an appeal would have been much less acute than now where the relevant files had been destroyed or lost.

[16] I agree with Mr Rhodes that even on that approach, which is favourable to Mr Brown, there is still no adequate explanation for the 15 year gap between Mr Brown accessing the family violence reports and other material and the lodging of his appeal.
I also agree that the prejudice to the Police is much greater now than would have been the case had the appeal been brought in 2003.

[17] However, while I accept that there may be a case for breaking up the 20 year gap as suggested by Mr Rhodes for the sake of argument, it would be wrong to assume that a Court would or should have exercised its discretion to extend the time to hear the appeal if it had been lodged within five years of Mr Brown being sentenced. Five years would still have been a very long delay and the reasons Mr Brown advances for not appealing within the initial 28 day period are not convincing:

(a) Mr Brown’s asserted reluctance to bring an appeal while he was still in contact with Ms Watkins stands in contrast to his assertions (discussed below) that Ms Watkins had lied in her complaint to the Police and lied in the witness box.

(b) While Mr Brown may have been dumbfounded by the convictions, he was legally represented and it is likely his counsel would have explained his appeal rights. Moreover, Mr Brown acknowledged that the judge also told him of the 28 day appeal period.

[18] In addition, Mr Brown was unable to show that the alleged misconduct of Sergeant Richards was relevant to Mr Brown’s convictions beyond the general assertion that a tainted police officer suggests tainted justice.

[19] For these reasons, I consider that Mr Brown has not provided an adequate explanation for the delay.

Substantive merits

[20] I explained to Mr Brown at the hearing that, as the Court of Appeal had said in R v Slavich, if he could not adequately explain the delay, he would have to establish that the merits of the case for his appeal were “overwhelming” to succeed with his application for an extension of time.

[21] Mr Brown put the merits of his case in the following terms:

• (a) There is a bigger picture at play here; his appeal is about substance and transparency; the documents he had provided to the Court provided tangible evidence in support of his case.

(b) His appeal would be about the credibility of two people:

(i) Sergeant Mullin, who had provided the Police Summary of Facts that had been before the District Court at his trial, had provided an inaccurate and deceitful account of events at Mr Brown’s residence when opposing Mr Brown’s bail application following his arrest.

(ii) Ms Watkins, who had given evidence at trial that she had been assaulted by Mr Brown when it had been Ms Watkins who had been the aggressor. In his written material and in his oral submissions Mr Brown gave further examples of Ms Watkins’ behaviour which he considered demonstrated her lack of balance and truthfulness, including the Victim Impact Statement she gave following Mr Brown’s arrest.

(c) The fact that protection orders made at the time of his sentencing had not been continued after 2003 was a basis for doubting the soundness of his conviction.

[22] For the police, Mr Rhodes said the destruction of the police file and the inability to locate Court documents meant the Police were unable to give an account of what had happened at trial to balance the account given by Mr Brown. This inability to give a balancing narrative demonstrated the prejudice faced by the police in responding to Mr Brown’s appeal.

[23] Even so, Mr Rhodes submitted that there was little in the case advanced by Mr Brown to establish that the appeal had merit. The police Summary of Facts was no longer available so there was no way of knowing whether it contained inaccurate and unfairly prejudicial material. But the Summary of Facts, like the family violence
reports and the bail hearing reports, would have been known to Mr Brown and his counsel at the time of the trial. For these reasons, the police did not accept that claimed non-availability of these documents established a basis for an appeal.

[24] As for the evidence of Ms Watkins, Mr Rhodes said she had given evidence at trial and had been cross examined on the accuracy of her account of events, and the District Court had reached its decision to convict Mr Brown on that evidence. While not wishing to cast doubt on the accuracy of the information provided by Mr Brown, Mr Rhodes emphasised there was nothing before this Court to justify reaching a conclusion different from that reached by the District Court Judge.

[25] With regard to the fact that protection orders were discontinued in 2003, Mr Rhodes said that did not provide any basis for concluding they were not properly issued five years earlier or that Mr Brown’s convictions were unsafe.

[26] I agree with Mr Rhodes’ submissions. While this Court cannot discount the possibility that there were flaws in the evidence considered by the District Court of the kind suggested by Mr Brown, the information Mr Brown has put forward falls well short of establishing that the merits of his case are “overwhelming” in the sense described by the Court of Appeal in R v Slavich. To the contrary, I consider the merits are weak.

Prejudice to the Crown

[27] On the question of prejudice to the police, in their written submissions the police referred to the Court of Appeal decision in Djilali v R² where an extension of time was sought to bring an appeal 21 years after conviction. In that case, evidence in the form of a videotape interview of the defendant had been destroyed. In addition, counsel for the defendant, whose alleged failures at trial were part of the grounds for appeal, had died. The Court of Appeal described the 21 year delay in that case as “extreme” and held that the prejudice to the Crown from the destruction of the videotape and the death of a potentially key witness was “insurmountable”. The Court declined the application for an extension of time to appeal.

² Djilali v R [2017] NZCA 515.

[28] While the prejudice in this case is not as serious as that described in the Djilali, the prejudice is nonetheless significant and would pose a very substantial obstacle to the police on appeal and on any retrial. Accordingly, even if the merits of Mr Brown’s appeal were stronger, I would still have been disinclined to grant leave to Mr Brown because of the prejudice to the ability of the police to defend the appeal.

Wider considerations

[29] In his submissions on the merits of his case, Mr Brown emphasised what he described as the bigger picture at play in his appeal which he said went to substance and transparency. As I said to Mr Brown at the hearing, those words did not really mean anything unless they related to a particular set of circumstances. Almost any case before the High Court can be said to involve a bigger picture and to involve issues of substance and transparency. That is why cases before the High Court receive close attention from judges and that is also why they are held in public.

[30] There is, however, a wider consideration to Mr Brown’s appeal to which he did not refer but which I consider is important. Appeal periods are set for a purpose: to ensure finality in decision-making and, that respect, the orderly administration of justice. In R v Knight, the Court of Appeal, in a passage later cited with approval by the Court of Appeal in R v Slavich¸ said the following about the exercise of a discretion under s 388 of the Crimes Act 1961:³

The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 338(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 338(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the individual applicant in having the conviction reviewed.

[31] As Gendall J held in Douglas v New Zealand Police,⁴ s 338 of the Crimes Act is analogous to s 123 of the Summary Proceedings Act and the same considerations apply. In this case, I am satisfied the wider interest of society in the finality of

³ R v Knight [1998] 1 NZLR 583 at 587.

⁴ Douglas v New Zealand Police [2013] NZHC 2651.

decisions weighs against Mr Brown’s interest in having his conviction reviewed. The Court system would be put under serious strain if people convicted of offences 20 or more years ago were able to relitigate their convictions based largely on assertions that a key witness had lied and that police officers had not acted with integrity. These are serious matters that warrant examination if there is adequate supporting evidence. But because they are serious matters, they need to be looked into with some speed and not brought back before the Courts 20 years after the event.

Conclusion

[32] While I understand that Mr Brown feels very deeply that an injustice has been done, he has not provided an adequate explanation for the 20 year delay between his being sentenced in September 1998 and this application. Nor has he established there would be substantial, let alone overwhelming, merit in his appeal to warrant leave being granted. I also accept that there would be significant prejudice to the police if they had to defend an appeal brought almost 20 years after sentence was passed in circumstances when the police file has been destroyed and the District Court file is unobtainable. Lastly, I consider that the wider interests of society in the finality of decisions outweighs Mr Brown’s interest in having his convictions reviewed. For all these reasons, I consider that Mr Brown has not established an adequate basis for leave to be granted.

Result

[33] Mr Brown’s application for an extension of time is declined.








G J van Bohemen J