DION NICHOLAS STITT AND THE KING

[2024] NZCA 566

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA355/2024
 [2024] NZCA 566

BETWEEN	DION NICHOLAS STITT Applicant
AND	THE KING Respondent

Court:	Ellis, Peters and Downs JJ
Counsel:	Applicant in person M R L Davie for Respondent
Judgment: (On the papers)	6 November 2024 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against conviction is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

1. Following a judge alone trial, Mr Stitt was convicted on 22 September 2023 on four charges arising from events in April 2020:  driving while suspended, aggravated assault, resisting police, and wounding with intent to injure.[1]  On 1 December 2023, Judge Bonnar KC sentenced Mr Stitt to seven months’ home detention.[2]

   [1]Police v Stitt [2023] NZDC 20373 [District Court verdicts judgment] at [98].

   [2]Police v Stitt [2023] NZDC 26926 [District Court sentencing notes] at [13].

2. Mr Stitt’s subsequent appeal against his convictions was dismissed by Gordon J on 14 May 2024.[3] 

   [3]Stitt v Police [2024] NZHC 1188 [High Court judgment].

3. On 4 June 2024, Mr Stitt filed a notice seeking leave to bring a second appeal, to this Court.  On 18 July 2024, a direction was made that the application for leave be determined on the papers and separately from the proposed appeal.  The Deputy Registrar subsequently made a direction that Mr Stitt was to file his submissions in support of leave by 5 pm on 8 August 2024.

4. Mr Stitt did not comply with that direction and failed to respond to emails from the Registry. 

5. On 12 August 2024, Mr Stitt was formally put on notice that if he did not file substantive submissions in support of the application for leave within 10 working days, the leave application will be referred to two Judges to consider dismissing it on the basis of the material already before the Court.

6. Mr Stitt did not file any submissions.  The leave application was referred for consideration on the basis just mentioned.[4]

The offending and the decisions below

[4]Although it was referred to three, rather than two, judges.

1. On 24 April 2020, Mr Stitt was driving while suspended.  He was speeding and was stopped by police.  Mr Stitt attacked two of the police officers, Constable Bentley and Constable Whitefield.  Constable Bentley suffered an open head wound and associated concussion, which resulted in ongoing neurological symptoms.  She also suffered spinal and leg injuries.

2. The spinal injury involved a prolapsed spinal disc resulting in permanent nerve damage.  Constable Whitefield suffered a serious ankle injury which required surgical intervention.

3. As noted, Mr Stitt stood trial before Judge Bonnar, sitting alone.  The trial started on 10 June 2022.  It was adjourned following the close of the Crown case that day and resumed on 3 July 2023.  Mr Stitt was represented by counsel:  by Hugh Leabourn on 10 June 2022, and by Luka Grbavac and Arlo Hartley on 3 July 2023.[5]

   [5]The District Court’s record of appearances indicates that Mr Stitt’s legal representation changed a number of times before and during the trial.

4. Mr Stitt elected to give evidence.  He said he was defending himself against an unprovoked attack by Constable Whitefield.  He denied assaulting Constable Bentley.

5. The District Court Judge found Mr Stitt guilty on all charges.[6]  He appealed to the High Court, saying that the verdicts were unreasonable and that his trial counsel erred as to cross-examination of the prosecution witnesses.  The hearing of the appeal was adjourned from February 2024 to May 2024 to enable Mr Stitt to file an affidavit, but he failed or declined to do so.

   [6]District Court verdicts judgment, above n 1, at [98].

6. Mr Stitt represented himself at the hearing of the appeal on 13 May 2024.  Despite the absence of evidence from Mr Stitt, it is plain from Gordon J’s judgment that she tried to discern whether trial counsel erred in cross-examination by reviewing the transcript of the evidence.  She found no such error.[7] She noted that in essence, Mr Stitt was seeking to argue that the District Court Judge was wrong to have preferred the evidence of the police officers over that of Mr Stitt. She noted the customary difficulty in advancing an appeal on that basis,[8] and that the Judge below had explained rationally why he preferred the police evidence. She said it was available to him to do so.[9] 

The application for leave

[7]High Court judgment, above n 3, at [32], [48] and [50].

[8]At [14].

[9]At [29], [36], [40] and [45].

1. The notice filed by Mr Stitt indicates his proposed appeal is broadly based.  It refers to:

   (a)bad legal representation;

   (b)trial Judge error;

   (c)appeal Judge error; and

   (d)previous legal representation.

2. The notice also asserts:  “[t]hese convictions are unfair when I am innocent and have strong and unequivocal evidence that proves I am innocent.”

3. Section 237 of the Criminal Procedure Act 2011 provides that this Court must not grant leave to bring a second appeal against conviction unless it is satisfied the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.  This Court’s decision in McAllister v R confirms the threshold is a high one.[10]

   [10]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36]–[38].

4. There is nothing in the material before the Court to suggest that the proposed appeal involves a matter of general or public importance.  As Mr Davie said in the Crown’s memorandum filed pursuant to r 5C of the Court of Appeal (Criminal) Rules 2001, Mr Stitt seeks second-tier appellate review of the sufficiency of evidence and quality of trial counsel performance (without any supporting evidence).  Such grounds are frequently pleaded but infrequently successful.

5. Nor does it appear (based on the material before us) that a miscarriage of justice may have occurred or may occur.  In the absence of particularisation or any further information from Mr Stitt, the merits of the proposed appeal seem weak.  Rather, it seems Mr Stitt would simply try to re-run arguments that failed in the High Court.

6. As noted earlier, Judge Bonnar’s decision largely turned on reasoned credibility findings.  These were carefully reviewed by Gordon J who appropriately referred to the relevant authorities.  There is nothing new before us that might cause us to think that her analysis (or that of Judge Bonnar) was in error. 

Result

1. The application for leave to bring a second appeal against conviction is declined.

Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent