Further hearing on assault appeal

A Wanaka man disputing his conviction for common assault on a physiotherapist has won another day in the High Court after taking his case to the Court of Appeal.

Neville Morgan Mitchell was convicted of the assault at a trial in May 2018.

Police alleged that on June 8, 2017, Mitchell went to a physiotherapy clinic in Wanaka to make a complaint against one of the staff.

According to a recent Court of Appeal judgement, ''things apparently became heated''.

''A physiotherapist, Mr [Brett] Jenkins, attempted to escort Mr Mitchell out of the building.

''Mr Mitchell allegedly pushed Mr Jenkins three times.

''On the last occasion it is said the push was sufficiently hard to cause Mr Jenkins to lose his balance.''

Mitchell elected not to give or call evidence before Judge Alistair Garland at a trial in the Queenstown District Court, and he was convicted and sentenced to 40 hours' community work and nine months' supervision.

Mitchell then appealed his conviction and sentence to the High Court in Invercargill, ''alleging errors of fact and law''.

Legal aid was granted to allow Mitchell's appeal to be assessed, but lawyer Sonia Vidal was ''unable to discern a proper basis on which to advance the appeal''.

She was granted leave to withdraw, and Mitchell went ahead, representing himself.

Procedural deadlines were extended to allow Mitchell time to prepare his case, the final one on November 5, 2018.

Granting the extension, Justice Rachel Dunningham said as the appeal had been ''on foot for some time'' and ''timetabling directions'' had not been complied with by Mitchell, that if the points of the appeal were not completed by November 30, ''the appeal is hereby dismissed''.

Mitchell missed the deadline but court registry staff did not raise the issue with him and continued preparing for the appeal hearing.

The Court of Appeal considered another ''judicial consideration'' was required when the deadline set by Justice Dunningham was reached.

It allowed Mitchell's appeal and sent the matter back to the High Court for it to reconsider whether Mitchell's case should be dismissed for ''non-compliance with procedural orders''.

The Court of Appeal noted Mitchell had been unrepresented during the process and did not appear to understand he could apply for legal aid.

He now has a lawyer.

During the original trial, the Otago Daily Times reported Mitchell (61) was described by Judge Alistair Garland as an ''intelligent, well-spoken'' beneficiary ''consumed'' by being declined shoulder surgery by the Accident Compensation Commission.

mark.price@odt.co.nz

 

 

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