Brown v Police

[2023] NZHC 3430

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-0048

[2023] NZHC 3430

BETWEEN

JAMES DEAN BROWN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 October 2023
Appearances:	James Brown, the Appellant in Person T Taane for the Respondent
Judgment:	29 November 2023

JUDGMENT OF HARVEY J

This judgment was delivered by me on 29 November 2023 at 4.30 pm.

Date: …………………..

(Deputy) Registrar

Solicitors:

Pollett Legal, Tauranga

And to:

The Appellant

BROWN v NEW ZEALAND POLICE [2023] NZHC 3430 [29 November 2023]

Introduction

[1]                 James Brown  was  charged  with  driving  with  excess  blood  alcohol  on  29 October 2022. On 24 November 2022, his counsel Mr Kay entered a guilty plea on his behalf. On 30 March 2023, Mr Brown applied to have that plea vacated. Judge Bidois declined to do so on 4 April 2023. Mr Brown was then sentenced on 28 April 2023. He now appeals his conviction.

[2]                 Mr Brown is self-represented. From the various documents filed, his grounds for appeal appear to be:

(a)He received inadequate advice regarding his plea and the possibility of vacating a guilty plea.

(b)The District Court failed to consider an application to vacate the guilty plea before sentencing and in doing so overruled native right, including He Whakaputanga o te Rangitira o Nu Tirini and Te Tiriti o Waitangi.

(c)The New Zealand Police failed to provide “proof of claim” documents establishing its jurisdiction to prosecute Mr Brown, particularly in relation to its authority to operate on his ancestral whenua. In doing so, the New Zealand Police failed to comply with the Criminal Disclosure Act 2008.

(d)The charges have been laid against “James Brown” but Mr Brown is not that person, who is fictional, but is instead his true identity is “heemi”.

[3]                 On 5 September 2023, Lang J noted there is no basis to vacate guilty plea after sentence and directed that Mr Brown’s application be dealt with as a conviction appeal.

Appellate approach

[4]                 Under s 232, the appellate court must allow an appeal against conviction if, relevantly, a miscarriage of justice has occurred for any reason.1 A miscarriage of

1      Criminal Procedure Act 2011, s 232(2)(c).

justice means any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial that was a nullity.2 This includes a proceeding where an appellant has pleaded guilty.3

[5]The leading case of trial counsel error is Supreme Court’s decision in

R v Sungsuwan, which stated:4

[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel's conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate Court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[6]                 Thus, an appropriate approach is to consider whether there was in fact any error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome.5 If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary.6 Instructions relating to plea are one of three “fundamental decisions” where a trial counsel’s failure to properly follow specific instructions is likely to give rise to a miscarriage of justice.7

Discussion

[7]                 Mr Brown did not file any material detailing the basis upon which the trial counsel’s advice as to plea was said to be faulty. He merely stated that he did not understand the consequences of a guilty plea. At the hearing Mr Brown informed me that his only submission on this point was that he sought to have the plea vacated and that the appeal should be granted. When I pointed out to him that the orthodox process was for his former trial counsel to file an affidavit, Mr Brown indicated that he did not wish to have that matter pursued.8 He continued to assert that, in any event, he was

2      Section 232(4).

3      Section 232(5).

4      R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730.

5 At [70].

6 At [70].

7      Hall v R [2018] 2 NZLR 26 at [65].

8      A minute to that effect was issued on 26 October 2023.

not the person named in the proceedings, disputing that he was in fact a person called “James Brown” or even “Mr Brown.” He then claimed that the woman named on the birth certificate of “James Brown” was not his mother and that he had always been known as “Hemi”. I return to the identity point later in this decision.

[8]                 For completeness I turn  to consider Judge Bidois’ decision  not to vacate   Mr Brown’s guilty plea. A plea of guilty may be withdrawn at any time before the defendant has been sentenced or otherwise dealt with, if the court gives leave. The court must vacate the plea if specific circumstances relating to sentence indications occur, but those are not relevant here. There must be exceptional circumstances and the onus is on the defendant to establish it is the interests of justice for the plea to be vacated, for example, when the defendant has acted upon a material mistake, there is a clear defence, or there has been a serious defect in proceedings leading to the defendant entering the plea erroneously or under duress.9

[9]                 As noted, Mr Brown could not point to any deficiencies in his representation. The remaining arguments filed in his application to the District Court dated 30 March 2023 are without merit and do not establish that it is in the interests of justice to vacate the plea. They are summarised by the ground of appeal set out as (c) above.

[10]             New Zealand Courts are bound to accept the validity of Acts of Parliament.10 The Criminal Procedure Act 2011 sets out the process by which charges may be laid against a person. The New Zealand Police is entitled, through any Police employee, to lay a charge against a person under s 15 and conduct proceedings against that person under s 10(1)(a). Police are not required to provide this information under the Criminal Disclosure Act 2008; it is already set out in statute.

[11]             There is a further document authored by Mr Brown and dated 27 April 2023, following Judge Bidois’ decision declining to vacate plea but predating the notice of appeal. It was filed the day before sentencing. It purports to put forward further grounds upon which plea should be vacated. There had been no change in circumstances that might require Judge Bidois to consider a second application to

9      Whichman v R [2018] NZCA 519.

10     Rangitaawa v Chief Executive of the Department of Corrections [2013] NZCA 2.

vacate guilty plea.    The  application  was  likely  an  abuse of process.    Out of an abundance of caution, I will deal with any new arguments arising from this document.

[12]             Mr Brown argued in this document that “the charges laid by the police failed to inform me that I could not let my blood be taken as my blood is tapu under tikanga”. Section 72(1)(b) of the Land Transport Act 1998 empowers police to require an evidential blood test be given if a person has undergone an evidential breath test, the test appears to be positive and the person within 10 minutes of being advised of the matters in s 77(3)(a) elects to undergo a blood test. The summary of facts records  Mr Brown elected to undergo a blood test having returned an evidential breath test result of 600 micrograms of alcohol per litre of breath. Nothing in s 77(3)(a) requires Police to advise him of the matters he claims. Therefore, there is no irregularity that would justify the vacating of his guilty plea.

[13]             He then argued that he “was not offered the opportunity to have a specialist cultural report or a Marae/community panel”. Neither of these things is required to be offered prior to the entry of guilty plea and could not amount to grounds to vacate plea.

[14]             Finally, Mr Brown raised that “incorrect information on the profile of personal information” was entered by the Police. I assume this relates to the identity argument raised orally by Mr Brown and reflected in the ground of appeal set out at (d).

[15]             It can be dealt with shortly. It is a “sovereign citizen” type pseudo-legal argument that has no basis or meaning in law.11 No person can avoid legal liability by dissociating themselves from their “legal persona”.12

[16]             I pointed out to Mr Brown at the hearing that, despite disputing his identity, he had nonetheless signed various documents as “James Brown”. For example, the bail documents dated 1 November 2022 he signed as “James Brown”; his “proof of claim notice: full disclosure required” dated 30 March 2023 as “James Brown”; his “proof of claim notice to vacate plea” dated 27 April 2023 as “James Brown”; his notice of

11     See Niwa v Commissioner of Inland Revenue [2019] NZHC 853, [2019] NZAR 1104 and Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105 at [10]–[11].

12     At [10]–[11].

appeal dated 17 May 2023  as  “James  Brown”;  and  his  notice  of  appeal  dated 16 October 2023 as “Hemi J Brown”.

[17]             I also asked counsel to confirm the evidence by which Mr Brown had been identified when he was processed and charged by the Police. Mr Taane in an email to the registrar dated 22 November 2023 confirmed that Mr Brown had received in disclosure a copy of a photograph of himself that was taken at the time. Following that, Mr Brown would then be given the opportunity to file a further submission.

[18]             Earlier this afternoon, Mr Brown filed a number of documents, none of which have any bearing to the issues on appeal. They included Bible verses, a copy of the “Cestui Que Vie Act 1666” and three documents containing pseudo-legal jargon with no legal effect.13

[19]             I am satisfied that the person in the photograph is the same person who attended the appeal hearing on 30 October 2023. I am also satisfied that the question of the identity of the appellant for the purposes of this appeal are no longer at issue. Moreover, none of the matters raised by Mr Brown address the relevant points on the appeal concerning, what appeared to be at the initial stages at least, a claim regarding trial counsel error. As  foreshadowed,  the  balance  of  the  submissions  made  by Mr Brown orally do not address the appeal grounds either. In any event, I can find nothing in the written material put forward which demonstrates any error by counsel or the Judge nor demonstrates a miscarriage of justice has occurred.

[20]             For these reasons, and because I detect no error in the learned Judge’s approach, the appeal must be dismissed.

Decision

[21]The appeal against conviction is dismissed.

Harvey J

13     See generally Niwa v Commissioner of Inland Revenue, above n 11.