Burchell v Police
[2020] NZHC 652
•26 March 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-557
CRI-2019-404-542 [2020] NZHC 652
BETWEEN LLEWELLYN BURCHELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 March 2020 (Via telephone) Counsel:
Appellant in person
B Finn for Respondent
Judgment:
26 March 2020
JUDGMENT OF WHATA J
This judgment was delivered by me on 26 March 2020 at 4.00 pm.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Meredith Connell, Auckland
BURCHELL v POLICE [2020] NZHC 652 [26 March 2020]
[1] Mr Burchell appeals against conviction and sentence for one charge of blackmail and one charge of theft. It is currently set down for hearing on 4 May 2020.
[2]This comes to me under urgency because:
(a)Mr Burchell claims Court staff have been refusing to table matters raised by him with the Court;
(b)Mr Burchell says he has not been able to attend Court for previous call overs because probation officers refused to let him attend and or arrested him for breach of his home detention conditions – this has prejudiced his ability to secure an early fixture;
(c)Mr Burchell maintains his home detention sentence was stayed by the District Court;
(d)Mr Burchell’s fixture has been set down for May, by which time his sentence of home detention will have nearly expired; and
(e)Mr Burchell has asked to bring his appeal forward and applies to cancel EM bail ordered by Judge Sharp as soon as possible.
[3] I must therefore determine whether it is necessary, in the interests of justice, to bring this matter on for urgent hearing and/or suspend Mr Burchell’s home detention pending the appeal. Given that Covid-19 alert level 4 will apply in respect of any urgent fixture, only priority matters may be set down for hearing.
[4] In addition, because the Covid-19 alert level 3 was operative at the time of this hearing, it was dealt with by way of telephone conference. No objection was raised to this course. At the conclusion of the hearing, I directed that the appeal be heard on 6 April 2020 at 10.00 am, but I declined to suspend the home detention. My reasons follow.
Background
[5] Dealing first with the blackmail, Mr Burchell was charged with threatening to disclose alleged criminal activity of the victim on 15 October 2015. He was given a sentencing indication on 10 June 2019 of 6 to 8 months. He then pleaded guilty to the blackmail. He later received a sentence of 6 months’ home detention on 26 November 2019.
[6] Turning to the theft conviction, Mr Burchell was charged with stealing a Harley Davidson motorbike on 23 May 2017. He also pleaded guilty to this charge, on September 2019.
[7] Mr Burchell filed his appeals on 17 December 2019. Mr Burchell’s grounds of appeal in relation to the theft charge are summarised as follows:
(a)He pleaded guilty to the charge of theft under significant duress – he says, among other things, a constable threatened to kill him and that he would tell Mr Burchell’s wife he had committed suicide;
(b)There was no evidence that the motor bike was owned by anyone – and his defence was that he thought it was abandoned; and
(c)There were many irregularities with the information provided in the Crown’s case, such as, dates on statements produced by the Police.
[8] Mr Burchell’s grounds of appeal on the blackmail charge are summarised as follows:
(a)The trial process was unfair to him, for example, Court staff would not assist Mr Burchell to summon witnesses and Judge Sharp did not allow Mr Burchell to summon witnesses because he complained about the way staff had handled his summons documentation;
(b)he was only allowed to question the victim, who committed perjury;
(c)he was not allowed a fair hearing;
(d)he pleaded guilty as he was suffering under stress and he continued to be abused by the Court, which insisted on protecting a fraudster; and
(e)court staff refused to deal with his legal papers.
[9] When this matter was first called on 17 January 2020, Mr Burchell sought the sentencing documents and transcripts from his plea and sentencing hearings, so a further case management conference was set down for 28 February 2020 in anticipation that an appeal hearing could then be fixed.
[10] At the first conference, Mr Burchell also claimed that he had been granted a stay by the District Court. He also complained about the behaviour of a High Court registry staff member. Gault J in his minute dealt at length with those matters. I record what he said here in full for ease of reference:
[7] Mr Burchell submitted that Judge Sharp made an order on 3 January 2020 staying his sentence of home detention pending appeal, but this had not been complied with - in particular Probation had refused to remove his electronic monitoring bracelet. He also complains that he is not allowed to deliver paperwork to the Court. He sought an order in this Court.
[8] Mr Finn was not aware of a stay order by Judge Sharp. He submitted that if the District Court Judge had made an order staying execution pending appeal, it should be complied with and there was no need for this Court to make a further order. On the other hand, if the District Court Judge had not ordered a stay, Mr Burchell should be given an opportunity to be heard in relation to the grounds for a stay.
[9] Mr Finn also submitted that under the Criminal Procedure Act 2011, a sentence of home detention is not suspended pending appeal unless the appeal court expressly directs that the sentence be suspended. This is to be contrasted with other community-based sentences where the sentence ceases to run on the day on which a notice of appeal or application for leave to appeal is filed. Separately, there is the possibility of bail pending appeal.
The Court file indicates that Mr Burchell sought a stay in the notice of appeal but was advised by the High Court registry that an application for stay of the sentence needed to be filed in the District Court in the first instance in accordance with s 54(2) of the Bail Act 2000. Mr Burchell then applied to the District Court on 18 December 2019 for a stay and bail. On 7 January 2020 the District Court advised that on 3 January 2020 Judge Shar directed:
There is no power to grant Mr Burchell’s application. He has appealed the decision on his conviction and sentence. I can no longer make any order in this case. Sentencing is stayed pending appeal in any event.
[11] The District Court Judge did not make an order, but recorded that he considered that sentencing is stayed pending appeal in any event. But, as Mr Finn submitted, a sentence of home detention (as distinct from other community-based sentences) is not automatically stayed under the Criminal Procedure Act. The District Court Judge had no power to stay the sentence under the Criminal Procedure Act – that can only be done by this Court as the appeal court.
[12] However, the District Court Judge was the correct person to consider an application for bail pending appeal. Section 54 of the Bail Act 2000 provides that an appellant subject to a sentence of home detention is bailable at any time before the hearing of the appeal at the discretion of the Judge whose determination is appealed against. The District Court Judge did not specifically address bail.
[13] Whether Mr Burchell seeks to apply to this Court for a stay or appeal against his implicit denial of bail, he should be given an opportunity to do so. He is self-represented and was not in a position to make out his grounds at callover today. If Mr Burchell files and serves any such application, it can be addressed.
[11] Mr Burchell did not appear at the 28 February fixture, so the call was adjourned for a further week with a direction that, if Mr Burchell does not appear again, orders will be made in his absence. The matter was called on 6 March 2020. Mr Burchell did not appear. Katz J was aware, however, of Mr Burchell’s persistent claim that his sentence had been stayed and his multiple complaints about High Court staff. The Judge refers in her minute to that fact that an appeal does not automatically suspend a sentence and that Mr Burchell is entitled to apply to have it suspended and has not done so. The judge set the matter down for hearing on 6 May 2020.
Mr Burchell’s further complaints
[12] Since then, Mr Burchell has made further complaints still about interference by probation officials with his ability to attend Court and the behaviour of registry staff, claiming among other things, that they have refused to table documents with this Court. These complaints repeat the claim that his sentence was stayed by Judge Sharp. He also claims that High Court staff did not provide him with a copy of Gault J’s minute and that he was not informed of the call over on 28 February 2020. He says that a court staff member “organised to arrest Mr Burchell and keep Mr Burchell in jail and locked up to prevent Mr Burchell to deal with this appeal”. He also says that
High Court staff failed to provide him with transcripts of the hearings at which he pleaded guilty and other related records.
[13] Mr Burchell further claims the Police prevented him from making contact with legal counsel and locked him up without food or medication. He says that one Judge had him beaten up by security staff in court. He says probation officials instructed that he was not allowed to go to the High Court on 28 February. After he was released he said he was allowed EM bail on a 24-hour curfew. He makes further allegation of corruption by probation officials who refused to extend his time to attend Court on 20 March 2020.
[14] He also complains that Court staff are refusing to take applications over the counter and deliberately failing to bring his appeal to the Court. He also says he could not attend on 6 March 2020 because of probation officials. He also seeks orders to produce those staff so that his claims of abuse can be put to the Court. As noted above, Mr Burchell requested an urgent hearing to address these claims.
Respondent’s position
[15] Mr Finn for the New Zealand Police was content with the matter being heard on 6 April. He opposed the lifting of the home detention because the time until hearing was short and the merits of Mr Burchell’s appeals were weak. He noted in this regard that he has reviewed the transcripts of the hearings at which Mr Burchell pleaded guilty. He says they show that Mr Burchell did not make his pleas under duress and that there is no proper basis now for setting them aside.
Assessment
[16] Mr Burchell makes various claims about the behaviour of probation officials, the Police, and Court staff for the purpose of his appeal and also in relation to the appeal process. He made similar claims throughout the District Court process. Some of the claims are very serious. For example, claims of malicious behaviour by police and probation officers, as well as court staff. I return to these claims below. I pause here, however, to expressly reject Mr Burchell’s claim that the High Court staff have
maliciously refused to provide him with information or discharge their duties in respect of his appeal. That claim is not supported by the record. It is clear, for example, that Mr Burchell was provided with copies of call-over minutes. He was also sent all of the transcripts of the hearings at which he pleaded guilty.
[17] Turning now to Mr Burchell’s applications. While the delay in bringing this matter on for hearing largely relates to the need to obtain District Court documentation for the purpose of the appeal, as well as Mr Burchell’s failure to attend the call overs on 28 February 2020 and 6 March 2020, the hearing should be brought on as soon as possible given the expiry date of the home detention sentence on 26 May 2020. To my mind, an early fixture is justified to ensure that the appeal is not rendered nugatory by the delay and given that it bears on Mr Burchell’s liberty. I therefore allocate a fixture on 6 April 2020 at 10.00 am.
[18] Mr Burchell was initially happy with this date, but at the end of the hearing Mr Burchell complained vociferously that he had not been provided with the transcripts of the hearing at which he gave his guilty pleas. That is incorrect. The Court’s records show they were emailed to him on 19 February 2020. He also complained that he did not have the transcript of a hearing before another judge wherein he claims to have been beaten up at the request of that judge. That claim is evidently outrageous and scandalous. In any event, I refused to delay the hearing to enable that transcript to be produced. This is because the key transcripts dealing with the guilty pleas have been provided to Mr Burchell. I also directed that further copies be provided to him.
[19] Suspension, however, is not justified. The power to suspend is contemplated at s 343 of the Criminal Procedure Act 2011 as follows:
343 General effect of appeal on sentence
No sentence may be suspended just because a person files a notice of appeal or notice of an application for leave to appeal under this Part, unless—
(a)the appeal court expressly directs that the sentence be suspended; or
(b)an enactment provides for the sentence to be suspended in that case
[20] No criteria are specified for the grant of suspension, but the policy of the law is exemplified by the power to grant bail pending an appeal.1 Mr Burchell must satisfy the Court that it is in the interests of justice to do so.2 Also by analogy to the power to grant bail pending appeal, relevant considerations include:3
(a)the apparent strength of the grounds of appeal:
(b)the length of the sentence that has been imposed on the appellant;
(c)the likely length of time that will pass before the appeal is heard;
(d)the personal circumstances of the appellant and the appellant’s immediate family;
(e)any other consideration that the court considers relevant.
[21] Dealing first with the apparent strength of the grounds of appeal. Mr Burchell pleaded guilty to both charges. As the Court of Appeal said in R v Smail:4
[17] When somebody pleads guilty to a crime, it is only in the most constrained circumstances that that person may be permitted by a Court to change their plea.
[22] In relation to both charges Mr Burchell claims he pleaded guilty because of undue pressure by police officers (including a threat to kill) and malicious obstruction by court staff. He says the trial process was unfair, noting among other things the refusal by Judge Sharp to permit Mr Burchell to summon witnesses at the blackmail trial.
[23] Ordinarily, claims of abuse and malicious conduct by police officers and officers of the Court must be supported by credible evidence. It appears Mr Burchell will be relying almost entirely on his own account to enforce his claims of abuse and malicious conduct. That is a weak evidential basis upon which to mount such claims.
1 Bail Act 2000, s 14.
2 Din v R [2013] NZCA 610 at [22].
3 Bail Act 2000, s 14(3).
4 R v Smail [2008] NZCA 6.
Furthermore, Mr Burchell’s wide ranging claims of this very serious kind, against many (perhaps all) persons who are involved in his criminal proceedings, is a factor that tends to undermine the credibility of his claims. Mr Burchell claims he is the victim of malicious acts by three major actors in the criminal process – the Police, Probation, and officers of both the District Court and High Court. While I express no final view as to merits of those claims, such a coincidence of malicious behaviour across so many actors is improbable.
[24] I have also had the opportunity to review some of the background to the District Court proceedings. It is evident to me that the District Court went to considerable lengths to accommodate Mr Burchell. Again, while I express no final view on the merits of his claims of unfair process, this ground also appears to be weak.
[25] As to timing, I accept, that had the appeal taken place close to or after the expiry of the home detention period, Mr Burchell’s case for suspension would have been stronger. But I have addressed this by bringing the date forward.
[26] No factors personal to Mr Burchell were highlighted to me, other than his ongoing grievance with his treatment and his mistaken understanding that his sentence had been stayed, that might bear on the exercise of my discretion to suspend the home detention.
[27] Finally, I have considered the effect of the Covid-19 alert level during this period. It seems to me that this is a somewhat neutral factor – we all its seems are subject to a level of home detention. Furthermore, I assume that the address was a suitable address insofar as Mr Burchell has the support he requires during this period. If not, I reserve leave for him to come back to me about that.
[28] Overall, I am satisfied that the interests of justice do not require suspension of the home detention sentence.
[29] Accordingly, I accept the hearing needs to be brought forward to 6 April 2020, but I decline to suspend the sentence of home detention.