The Queen v Osborne

IN THE COURT OF APPEAL OF NEW ZEALAND
CA179/2008
[2009] NZCA 168
THE QUEEN
v
RATIMA JOSEPH OSBORNE
Hearing:30 April 2009

Court:Robertson, Chisholm and Gendall JJ
Counsel:Appellant in Person

M Dyhrberg as Amicus curiae
J M Jelas for Crown

Judgment:5 May 2009 at 12.30 pm

JUDGMENT OF THE COURT

TIME FOR APPEALING CONVICTION EXTENDED TO 1 JULY 2009.
REASONS OF THE COURT
(Given by Gendall J)
[1]       On 11 April 2008, Mr Osborne filed an appeal against his conviction for murder after he pleaded guilty in the High Court at Rotorua on 27 May 2002 and was sentenced to life imprisonment by Potter J.
[2]       In terms of s 388 of the Crimes Act 1961, Mr Osborne had 28 days to file his appeal. The Court has jurisdiction to extend time. Because of the length of the delay it was determined that this issue should be dealt with first.
[3]       Mr Osborne had instructed counsel at the time that the appeal was filed, but the Legal Services Agency declined funding. The Court was faced with an illiterate young man serving a life term of imprisonment without representation. The Court appointed Marie Dyhrberg as Amicus to assist.
Brief background
[4]       The appellant was charged that on 10 July 2001 at Wharamaru, near Taupo, he murdered Jason Johnson, a hitchhiker. The Crown case was that Mr Osborne had picked up Mr Johnson that evening and had violently attacked him, possibly run him over with his motor vehicle, and manhandled him into a river or lake leaving him to die as he did.
[5]       Mr Osborne made a number of contradictory statements (each in itself largely exculpatory) to the Police prior to the end of July. Early in August 2001, he provided a further explanation to his then barrister, Mr Fairbrother. It is arguable that this explanation is the same as that contained in notes which were written out, on his instructions by a cellmate a little later and are replicated in a statement of 31 October 2001, prepared with the assistance of a lawyer who was engaged by Mr Fairbrother, for this purpose.
[6]       Out of all this, the possibility of a defence of provocation seemed to arise. Well prior to trial, Mr Fairbrother initiated contact with a psychiatrist. That does not appear to have been followed up.
[7]       The week prior to the hearing, the Crown was assuming that provocation was one of the trial issues. The evidence currently available suggests that on the morning of trial discussions took place between Mr Osborne and his counsel about pleading guilty to ensure only the statutory minimum non-parole period of ten years would be imposed. The appellant accepted the counsel’s advice and pleaded guilty by 11.00am on what would have been the first day of a two week trial.
[8]       Notwithstanding the very substantial time that has elapsed, in the end the criteria for determining applications to appeal out of time are the interests of justice; R v Knight (1997) 15 CRNZ 332; R v Lee [2006] 3 NZLR 42; (2006) 22 CRNZ 568 (CA). Relevant considerations may include the strength of the proposed appeal and the utility of any remedy sought, length and reasons for delay, any impact on others and on the administration of justice and prejudice to the Crown.
[9]       The evidence indicates that, from an early stage, Mr Osborne wanted to challenge the conviction. He catalogues a list of various counsel in different parts of the country whom he endeavoured to interest in his case, but without any success.
[10]     The issue which Ms Dyhrberg has now identified as a possible ground of appeal we acknowledge is different than those which Mr Osborne has spoken of in the past. But the ultimate test is the interests of justice and this is a case involving a 17 year old where an identified trial issue was abandoned on counsel’s advice in a very short timeframe on the morning a murder trial commenced.
[11]     The matter should be properly ventilated with Mr Osborne represented and the full circumstances assessed.
[12]     The application to an extension of time for appealing is granted and time is extended to 1 July 2009. This will provide time for Mr Osborne to obtain his own representation for the appeal. By that date comprehensive grounds of appeal must be filed.
Solicitors:
Crown Law Office, Wellington

In the Court of Appeal of New Zealand, the appellant, Ratima Joseph Osborne, sought an extension of time to appeal his conviction for the murder of Jason Johnson. Osborne was initially represented by counsel but was unfunded and pro se when he filed his appeal. The Crown opposed the extension, arguing the delay was unjustified. The Court of Appeal considered whether the extension should be granted in the interests of justice, taking into account the strength of the appeal, the reasons for the delay, and any prejudice to the Crown.

The court identified that Osborne had attempted to secure legal representation to pursue his appeal but was unsuccessful. The court acknowledged the possibility of a defence of provocation which was not pursued at the trial. The Court of Appeal found that the issue of the trial counsel's advice to plead guilty, which led to Osborne missing the opportunity to argue provocation, was a potential ground for appeal. The court concluded that the appeal should be properly ventilated with Osborne represented and that the extension of time was warranted to allow him to obtain representation and prepare comprehensive grounds of appeal.

The Court of Appeal granted the extension of time for Osborne to appeal his conviction, setting a new deadline of 1 July 2009. Osborne was required to file comprehensive grounds of appeal by this date. The court directed that Osborne be represented by Marie Dyhrberg as Amicus to assist in the appeal process. The court emphasised the importance of ensuring that Osborne's appeal was properly prepared and that the interests of justice were fully considered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established