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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2009-454-38

T

v

NEW ZEALAND POLICE

Hearing:	12 May 2010

Appearances: Mr Becker for the appellant
Mr Murray for the respondent

Judgment:	25 June 2010

JUDGMENT OF MALLON J

Contents

Introduction............................................................................................................... [1] Background ............................................................................................................... [2] Request for adjournment........................................................................................... [7] The defended hearing.............................................................................................. [10] The competing evidence ......................................................................................... [13] The District Court’s decision .................................................................................. [16] Should adjournment have been granted? ................................................................ [20] Result ...................................................................................................................... [27]

T V NEW ZEALAND POLICE HC PMN CRI-2009-454-38  25 June 2010

Introduction

[1]       Mr T   appeals against his convictions on assault charges.  His ground of appeal is that an adjournment of the defended hearing ought to have been granted to enable him to obtain legal representation and because two material witnesses did not give evidence.  Mr T   had also appealed against his sentence but that appeal has been abandoned.

Background

[2]       The  assault  charges  arise  out  of  an  altercation  between  Mr T    and members of the Horowhenua Sailing Club.  The altercation took place on land which is subject to claims made by Mr T  ’s family trust in the Maori Land Court.  On
14 September 2008, members of the sailing club were preparing for an afternoon’s racing on the Horowhenua lake.   As part of those preparations, Mr Brown Senior was about to put a rescue boat into the lake.   The rescue boat was an aluminium runabout, with a 40 horsepower motor, and painted red with the words “Rescue” painted in large letters on each side.  Mr T   took exception to this because he understood there to be a bylaw prohibiting motor boats on the lake with engines of or
over a particular size.   Mr T   got out of his car and said that the boat was not to

be  put  in  the  water.    From  there  matters  escalated  and  an  altercation  between Mr T   and Mr Brown Senior and Mr Brown Junior took place.  The police were called and Mr T   was charged with assault under the Crimes Act 1961 in respect of Mr Brown Junior and assault under the Summary Offences Act 1981 in respect of Mr Brown Senior.

[3]       From  the  District  Court  records  it  seems  that  Mr  Gore  was  initially representing Mr T  .   By the time of the status hearing before Judge Fraser on
17 November 2008, the Legal Services Agency had assigned Mr Scott to act for

Mr T  .  Mr Scott’s memorandum to the District Court at the time advised that

this reassignment had been made due to Mr Gore’s ill health.  Mr T  , through his present counsel, advises that Mr T   had been having difficulty contacting Mr Gore after Mr Gore’s office had been the subject of an arson attack (there is no dispute that this attack occurred and it was some months before Mr Gore obtained new premises from which to practice).

[4]       As to what was discussed at the 17 November 2008 status hearing there is no FTR  recording  available  to  review.    However  Mr T    says  that  the  Judge commented to the Prosecuting Sergeant that he presumed that the police had other witnesses  than  the  Browns,  because  otherwise  it  was  just  their  word  against Mr T  ’s.   Mr T   says that the Prosecuting Sergeant said that he did have other witnesses that could be brought to the hearing.

[5]       It appears that the status hearing was adjourned to 8 December 2008 because Mr Scott had only recently been instructed.  According to Mr Scott’s memorandum to the District Court, after the 17 November 2008 status hearing had concluded, Mr T     advised   Mr Scott   that,   while   he   had   no   issue   with   Mr Scott’s representation, he wanted to use his own lawyers – namely Rainey Collins who had been working for him  on other matters.   As  a result Mr Scott sought leave to withdraw.

[6]       The adjourned status hearing took place on 8 December 2008.  There is an FTR recording available for that hearing which I have had my associate transcribe. The status hearing began with the Judge asking Mr T   if he had a lawyer. Mr T  ’s response was “Not today Sir.  I tried to get hold of one but can’t have been able to make it.  I can present what I got...”.  Mr T   goes on to explain what happened on 14 September 2008 from his perspective.  The Judge asked the Sergeant how many witnesses the prosecution was calling, to which the answer was “three in total”.  The Judge asked Mr T   the same question, to which Mr T   said “I’ll be calling the commodore of the club, that’s about all.  The only statements I have got is from the father and son”.  Mr T   said that the father and son’s statements were inaccurate.  The Judge said that this would not be resolved at the status hearing and said he would set it down for a status hearing.

[7]       The defended hearing was set to take place on 12 March 2009.  The District Court file discloses that by letter dated 12 February 2009 Mr T   requested an adjournment. The reasons given for the requested adjournment were:

a)	There was a Maori Land Court sitting on 20 March 2009 which might affect Mr T  ’s case;

b)	All charges could be heard on the same day, hopefully saving time and money; and

c)	“I have yet to arrange my legal representative and am in the process of getting legal aid. I will inform you of who that is as soon as poss.”.

[8]       The police opposed the adjournment and advised the Court of this by email on 27 February 2009.   The police noted that the witnesses, who were the victims, had arranged to take time off work and would be inconvenienced by any change. The police also doubted that the outcome of the Maori Land Court case would have any bearing because the force used by Mr T   would not be justified by any claim of ownership of the land.

[9]       On 11 March 2009 the District Court (Judge Ross) declined the request for adjournment. The judge recorded his reasons as being:

Though this adjournment application is dated 12/2/09 and is first before me
11/3/09, between these dates and even prior (the charges date from October
2008) there has been plenty of time to arrange legal representation.

As  to  the  second  reason:  only  if  the  charges  are  established  might  the location be a factor in sentencing.  Sentencing could be deferred.  Defence of land per se not usually a defence to assault charges, all other things being equal.

Application for adjournment.  Declined.

[10]     On 12 March 2009 the defended hearing before Judge Ross commenced.  The FTR  recording  of  what  was  first  discussed  has  now  been  transcribed  by  my associate.   Mr T   was asked if he had any witnesses.   He replied “Not today Sir”. A similar question was asked of the prosecution who advised the Judge that there  would  be  three  witnesses.    The  Judge  then  advised  Mr T    and  the prosecution witnesses that the matter would be stood down until 1.45pm because there were other matters that needed to be dealt with first.  The following exchange then took place:

Mr T  :

I actually requested the Court to postpone to get my witnesses and a lawyer organised.   And there was another hearing in the Maori Land Court to do with the land that the building was on.

The Bench:

Yes.

Mr T  

It’s not going to be held until 23 March.

The Bench:

I saw that.  I dealt with the application for the adjournment on the papers and on your written application.  That was rejected.  A copy of that should have been given to you explaining the reasons why the matter was to proceed today.

Mr T  :

I spoke to [inaudible] he said you need to come in today to see whether it was going to proceed or not.

The Bench:

Well it is going to proceed but it is stood down until 1.45.   Thank you. Prosecution witnesses are also released until 1.45. Thank you.

[11]     At some point in the afternoon the defended hearing commenced.  It is not clear precisely when it started, but it seems to have commenced later than was envisaged  and  the  Court  sat  late  so  as  to  complete the prosecution’s  witnesses

(Mr Brown Senior, Mr Brown Junior and the police officer who attended the incident giving evidence).

[12]     The defended hearing did not resume again until 14 May 2009.  Mr T   remained without legal representation.  The FTR recording at the commencement of the resumed hearing has been transcribed by my associate.  There is nothing of note in that.  Mr T   proceeded to give his evidence and was cross examined by the prosecution.

The competing evidence

[13]     There was a conflict in the evidence given by the Browns and Mr T  . Mr T  ’s account was as follows:

a)	Mr Brown Senior was with a couple of others from the sailing club.

Mr T   asked them not to put the boat in the water because it was not permitted.  Their response was to say that the boat was going in the water.  Mr Brown Senior stood in front of Mr T   to prevent him moving closer to the boat.  Mr T   grabbed Mr Brown Senior by the shirt and pushed him aside.

b)        Soon  after  this  Mr Brown  Junior  came  over  and  started  abusing Mr T  .   At this point Mr T   told the sailing club members that they could also remove themselves from the property because they had no valid lease.   Mr T   then entered the sailing club’s building.  Mr Brown Junior followed him.

c)        Mr T    went  up  to  the  balcony.    Mr Brown  Junior  exited  the building and stood beneath the balcony abusing Mr T   and calling the police.   Mr T   called out to Mr Brown Junior to get off the property.

d)        Because it was obvious he was not going to comply, Mr T   went down the stairs and attempted to remove Mr Brown Junior from the

property.  Three or four times he had to grab, push or pull Mr Brown

Junior.

e)        He was grabbed from behind by someone and then punched from behind while being held by a couple of others.   Mr T   turned around  to  see  that  it  was  Mr Brown  Senior  who  had  hit  him. Mr T   was perfectly capable of defending himself but he chose to remove Mr Brown Senior’s hat and throw it at him.

f)         Mr T   waited for the police to arrive.   On arrival, the police officer  spoke  to  the  sailing  club  members  first  and  then  arrested Mr T   without first asking for his account of what had happened.

[14]	Mr Brown Senior’s evidence differed from this.	The main aspects of his evidence were that:

a)        He and others were not standing in the way of Mr T  .  Mr T   was  acting  aggressively  and  coming  closer  and  closer  to  him. Mr Brown Senior called out to others because he was not feeling comfortable with the situation.   Mr Brown Senior had been on the rescue  boat  and  when  Mr T    grabbed  him  he  tried  to  pull Mr Brown Senior off the boat;

b)        After Mr Brown Junior had followed Mr T   into the building, Mr Brown Senior saw his son come out of the building backwards and in a rush;

c)        When  Mr T    came  back  out  of  the  building  and  went  up  to Mr Brown  Junior,  Mr T    appeared  to  be  punching  Mr Brown Junior.   He could not see whether Mr Brown Junior was punching back;

d)        Mr Brown Senior put his arm around Mr T  ’s head, trying to pull his  head  back  and  in  the  process  Mr T  ’s  beret  came  off. Mr T   was restrained by others.

[15]	Mr Brown Junior’s evidence was similar to his father’s evidence.  The main aspects of his evidence were that:

a)        Mr Brown Junior heard Mr T   telling his father that the boat was not going in the water as the motor was bigger than 10 horsepower and saw him grabbing his father and pushing him around;

b)        Mr Brown  Junior went over and pushed Mr Brown Senior off his father.  Mr T   was angry and quite threatening.

c)        Mr Brown Junior followed Mr T   into the building telling him he was trespassing whereupon Mr T   kicked him in the chest such that,  although  not  falling,  Mr Brown  Junior  ended  up  back  at  the bottom of the steps from the second step;

d)        While Mr T   was standing on the balcony Mr Brown Junior was giving a description of Mr T   to the police on his cell phone. Mr T   came storming down and chased Mr Brown Junior towards the two power boats.  He punched Mr Brown Junior.  Mr T   had his car keys in his hand when the first punch was administered and this resulted in a cut and a black eye.   Others pulled Mr T   off Mr Brown  Junior.    There  was  then  a  heated  exchange  between Mr T   and Mr Brown Junior.  Then Mr T   pushed Mr Brown Junior over the back of one of the boats, put him in a head lock and punched him.

e)	Then  others,  including  Mr Brown  Senior,  pulled  Mr T    off

Mr Brown Junior.

The District Court’s decision

[16]     The summary offence assault related to Mr Brown Senior.  The Judge found that there was ample evidence to support the actus reus of the charge.  The Judge said  he  accepted  Mr  Brown  Senior’s  evidence  over  Mr  T  ’s  where  their evidence conflicted in minor detail.

[17]     The Crimes Act assault related to Mr Brown Junior.   The Judge accepted Mr Brown Junior’s evidence that Mr T   threw punches at him.  His reasons were first, that Mr Brown Junior’s account was more credible; secondly it was supported by the photographs taken of Mr Brown Junior showing a cut or scratch below the left eye, some redness to the neck and a cut to the ear; thirdly, it was supported by Mr Brown Senior’s evidence of seeing bleeding from Mr Brown Junior’s nose and ear.

[18]     The Judge went on to consider whether Mr T   had a defence under s 56(1) of the Crimes Act, which provides:

Everyone in peaceable possession of any land or building ... is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom if he does not strike or do bodily harm to that person.

[19]     The Judge rejected this defence as follows:

[8]        There are two elements of that defence which are entirely absent from the defence which you postulate before me.  The first of those is that at that time you were not and there is no or no sufficient evidence of peaceable possession on your part of any part of that building or the land around it. There was substantial evidence in respect of a lease which is said to have been entered into between a domain board and the yacht club but no copy of the lease was produced and it appears that certain matters are up in the air. You have made some claims before me today in your evidence which are not supported and as at today’s date let alone the situation of 14 September
2008.

[9]        The other limb of the defence which is not satisfied that in using reasonable force the defender of the property is not to strike or do bodily harm to the trespasser.   Whether or not the Brown and especially Brown Junior was a trespasser on my findings of the evidence, you have struck him and are therefore disqualified from the use of that defence created by the Crimes Act.   It follows that for these reasons the two charges which are

before the Court have been established.  On each of the two charges you will be convicted.

Should adjournment have been granted?

[20]     The issue that arises is whether Mr T   ought to have been granted an adjournment because he was unrepresented.   This was rejected on the basis that Mr T   had ample time to obtain representation.  While that appeared on the face of it to be so, Mr T   was not asked to explain why he had not been able to obtain representation.   Mr T  ’s counsel advises on this appeal that Mr T   had intended to instruct Donna Hall.   She was acting for him on Treaty of Waitangi issues.  Mr T  ’s counsel advises that Mr T   had thought Ms Hall could act for him on criminal matters but that was not Ms Hall’s intention.  As well there are communication difficulties for Mr T   as, until recently, he did not have a telephone.

[21]     In seeking the adjournment, Mr T   had made it clear that he wished to have representation and was in the process of getting legal aid.   That wish is consistent with Mr Scott’s memorandum which had earlier been filed.   Mr Scott’s memorandum  also  advised  of  the  earlier  difficulty  with  Mr T  ’s  original representation.  Mr T   had acted appropriately by raising his difficulty with legal representation more than a month before the defended hearing was scheduled.

[22]     The police had opposed the adjournment on this ground on the basis of inconvenience to the prosecution witnesses.  Had the application for an adjournment been able to be dealt with by the Judge at or around the time that it was made (and I mean no criticism here of the Judge who records that the application was only before him the day before the hearing) there must have been a reasonable prospect that the prosecution witnesses could have changed their leave arrangements.   There is no suggestion that there had been any significant delay in getting the matter to hearing up to this point, so it was not imperative that the matter proceed.  As it happened too much court business was scheduled for 12 March 2010 and so the defended hearing could not be completed that day anyway.

[23]     It was not Mr T  ’s fault that his application for an adjournment was not dealt with until the day before the hearing, and it seems that he did not learn of that decision  until  the  day  of  the  defended  hearing.    Mr T    turned  up  to  court apparently still hoping he would get his adjournment.  When he learned that he was not, he was left to conduct his own defence.  It appears from the transcript that he did so to a reasonably high standard for a lay litigant but that is not the point.

[24]     Mr T   was apparently under the impression that the prosecution would have to call evidence beyond that of the father and son.   With reference to the conflict in the evidence, towards the end of Mr T  ’s evidence he had noted to Judge Ross that, at the earlier hearing (presumably referring here to the first status hearing), the Judge had asked the police if they had witnesses other than the Browns to call and the police had said yes but it had turned out the Browns were the only witnesses.  Not being a lawyer, Mr T   was not to know that the case could be proven against him on the basis of their evidence alone.  It is also not clear whether the  police  had  taken  statements  from  other  witnesses.    It  appears  from  what Mr T    said  at  the  8 December  2009  status  hearing that,  if  there  were  other statements obtained, they had not been provided to him (since he referred to only having statements from the father and son).  Not being a lawyer Mr T   was not to know that disclosure of any other statements that existed could have been pursued and that, depending on their content, their evidence ought to be called by Mr T   to support his version of events.

[25]     Moreover Mr T   was relying on a technical defence.  It appears that the Judge considered this defence in relation to both Mr Brown Senior and Mr Brown Junior, and rejected this in relation to Mr Brown Senior on the basis that there was no sufficient evidence of Mr T  ’s peaceable possession of the building or the land around it.   It may be that the Maori Land Court hearing was relevant to this (rather than potentially relevant to sentencing only as the Judge had assumed when rejecting the adjournment on this basis).  Even if the Maori Land Court hearing had not  assisted,  legal  representation  may  have  assisted  Mr T    to  provide  the evidence he needed to establish this part of the defence.

[26]     In these circumstances, by declining the adjournment and thereby requiring Mr T    to  proceed  without  a  lawyer,  Mr T  ’s  right  to  a  fair  trial  was compromised.   I acknowledge that by the time of the resumed hearing Mr T   presumably could have obtained legal representation.   However by then the prosecution case had already been completed.  Mr T  ’s right to a fair trial had already been compromised.  Having been required to represent himself on 12 March
2010, Mr T   seems to have decided to continue on at this point unrepresented. Had the adjournment been granted in the first place it is not clear that the same decisions would have been made.

Result

[27]     The conviction is quashed.  The matter is referred back to the District Court for rehearing.

Mallon J

Solicitors:
K Becker, Becker Law, Levin, email: keith.becker@beckerlaw.co.nz
P Murray, Ben Vanderkolk & Associates, Palmerston North, email: paul@bvalaw.co.nz