Burrows v Police

[2019] NZHC 1198

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-17

[2019] NZHC 1198

BETWEEN

WAYNE JOHN BURROWS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 May 2019
Counsel:	Mr W J Burrows in person K J Draper for Respondent
Judgment:	29 May 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1]    The appellant, Mr Wayne Burrows, faces two charges of criminal harassment.1 He appeals against Judge Butler’s decision of 12 February 2019, pursuant to s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act), finding that there was sufficient evidence against him to establish that he caused the acts forming the basis of the harassment charges.2

Background

[2]    On 27 March 2017, Mr Burrows appeared before the Wellington District Court and the Judge ordered a report pursuant to ss 38(1)(a) and (b) of the CPMIP Act. The purpose of that report was to advise the Court as to Mr Burrows’ fitness to plead and/or whether he might have a defence of insanity available to him.

1      Harassment Act 1997, ss 8(1)(b) and (2); maximum penalty two years’ imprisonment.

2      New Zealand Police v Burrows DC Wellington CRI-2017-085-000734, 18 February 2019.

BURROWS v NEW ZEALAND POLICE [2019] NZHC 1198 [29 May 2019]

[3]    The s 38 report was completed by Dr Barry-Walsh on 5 May 2017. While he concluded that Mr Burrows did not have an available defence of insanity and that he was fit to stand trial, Dr Barry-Walsh did, however, note the existence of some underlying mental health issues and that it was possible that Mr Burrows’ mental state might yet deteriorate to a point where his fitness might be affected.

[4]    At a case review hearing on 27 July 2017, Mr Burrows’ attendance was excused. At this time, the Court Mental Health Liaison Officer advised of concerns about a possible deterioration in Mr Burrows’ mental health. The presiding Judge ordered an updated report pursuant to s 38 of the CPMIP Act.

[5]    Dr Barry-Walsh provided this updated report on 21 September 2017, again concluding that Mr Burrows did not have a defence of insanity and was fit to stand trial. Two adjournments were subsequently granted in order for defence counsel to consider their position in light of the updated reports.

[6]    On 26 October 2017, Judge Mill gave a decision that the procedure pursuant to s 9 of the CPMIP Act was triggered, noting that Mr Burrows was likely to be self- represented. The hearing was scheduled to occur on 23 November 2017.

[7]    The substantive s 9 hearing did not occur on 23 November 2017 as Mr Burrows indicated that he required the complainant and other witnesses to be present for the purposes of cross-examination. Judge Hobbs heard argument on this point and issued a reserved judgment on 8 December 2017 declining Mr Burrows’ application for viva voce evidence to be called.

[8]    Mr Burrows’ appeal of this decision was heard on 9 May 2018, Ellis J issuing a judgment on 4 July 2018 dismissing the appeal.

[9]    The s 9 hearing was heard over two days on 5 and 6 September 2018. The following month, the Judge requested written submissions from both parties on the meaning of “accosted” and “sending emails” be filed by 14 October 2018 and oral argument was heard on these submissions on 1 February 2019.

Decision under appeal

[10]   The decision which is now under appeal, in which the Judge found there was sufficient evidence against the appellant to establish he caused the acts in question, was delivered on 12 February 2019.

[11]The Judge set out the requirements of s 9 of the Act which are:3

9        Court must be satisfied of defendant's involvement in offence

A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.

[12]The following submissions of the defendant were noted:4

(a)That he had not sent emails to the complainant, but rather had sent those emails to a lawyer acting for the complainant who had, in turn, forwarded the emails to her client, the complainant.

(b)That he had not “accosted” the complainant in Wellington as alleged, but rather, she and a male companion had confronted him as a result of a chance meeting at an intersection in the Wellington Central Business District.

[13]The prosecution’s responses were noted as follows:5

(a)That on one occasion, the defendant wrote directly to the complainant and that subsequently the defendant, of his own volition, copied his emails directly to the complainant herself, despite her lawyer having earlier deleted her from the email chain.

(b)That before the confrontation in Wellington 17 February 2017, the defendant altered the direction of his travel so as to make a face-to- face meeting with the complainant and her male companion inevitable.

[14]   Stating that these conflicts in the respective accounts could only be resolved after a defended hearing,6 the Judge said:

3 At [7].

4 At [11].

5 At [12].

6 At [13].

[14]      The defendant does not deny the acts or omissions that form the basis of the charges, but rather he places an inference upon them completely different from that of the prosecution.

[15]     Accordingly, the Judge was satisfied as to the s 9 issue and directed that a further report from a health assessor be prepared in order to conclude the s 14 enquiry.7

Jurisdiction

[16]     The Crown submits that there is no jurisdiction to hear the appeal, arguing that the proceedings that are the subject matter of the appeal fall to be determined under the legislation existing at the time that the proceeding took place. Consequently, it is contended that the jurisdiction to hear this appeal will only become available after a determination of fitness pursuant to s 14(2)(b) of the CPMIP Act, as previously enacted before its repeal by s 131 of the Court Matters Act 2018, has been made by the District Court.

[17]     For the purposes of this appeal, where s 9 proceedings were commenced prior to the amendments made by the Court Matters Act, the proceedings must continue as if that Act had not been passed.8

[18]Prior to its amendment, s 16 stated:

16Appeal by defendant against finding relating to fitness to stand trial

(1)A defendant about whom a finding under section 14(2)(b) has been made may appeal against one or both of the following findings:

(a)that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged:

(b)that the defendant is unfit to stand trial or, as the case may be, fit to stand trial.

(2)For the purposes of an appeal under this section,—

(a)the finding appealed against is to be regarded as a conviction; and

7 At [15].

8      Criminal Procedure (Mentally Impaired Persons) Act 2003, sch 1AA(1)(3).

(b)the provisions of Part 6 of the Criminal Procedure Act 2011 relating to appeals against conviction, so far as they are applicable and with any necessary modifications, apply to the appeal.

[19]Section 14(2), which has also been amended, states:

If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—

(a)give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and

(b)find whether or not the defendant is unfit to stand trial; and

(c)record the finding made under paragraph (b).

[20]     The Crown argues that, as there has not  yet been any finding pursuant to      s 14(2)(b), the Court does not yet have the jurisdiction to proceed with the appeal at this stage. Consequently, it is submitted that the appeal should be dismissed and returned to the District Court to await the completion of the CPMIP Act fitness to plead procedure, at which time the appellant can then file an appeal should he choose to do so.

[21]     I accept the Crown’s submissions on this point. This Court does not have jurisdiction to proceed  with the appeal as there has  yet  to be  any finding under      s 14(2)(b). However, in the event that I am wrong, I will briefly address Mr Burrows’ argument under the amended legislation.

Relevant law

[22]     Section 16(1A) of the CPMIP Act provides that a defendant may appeal against a finding that there is sufficient evidence to establish that he or she caused the act or omission that forms the basis of the offence with which he or she is charged. For the purposes of such an appeal, the finding appealed against is to be regarded as a conviction and the provisions of Part 6 of the Criminal Procedure Act 2011 (the CPA) apply, so far as they are applicable.9

9      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 16(2).

[23]     The determination of first appeals under the CPA is governed by s 232, which relevantly provides that the appeal court must allow a first appeal if satisfied that a miscarriage of justice has occurred for any reason.10

[24]A “miscarriage of justice” is defined in s 232(4) to mean:

… any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

Discussion

[25]     Mr Burrows, who is self-represented, contends that s 9 requires that it be established that he had committed acts of harassment for which there could be criminal culpability and that the Judge did not find, on the balance of probabilities, that any act constituting an offence under the Harassment Act 1997 had been committed. He argues that:

(a)the emails he sent to the complainant were not harassing;

(b)he did not accost her on 17 February 2017 by any standard meaning of the word accost;

(c)it was not proved that he sent postcards to the complaint on the dates provided; and

(d)the incident at Auckland airport was not harassing.

[26]      Mr Burrows submits that, in criminal proceedings under the Harassment Act, the defendant’s mens rea needs to be taken into account.

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

[27]     The Crown, in response, submits that the Court only needs to be satisfied that there is sufficient evidence that the appellant committed the specified acts and is not required to consider his state of mind as to the intent behind those acts.

[28]     It is my view that the Judge only had to determine on the balance of probabilities if Mr Burrows had committed the acts in question, those being acts of harassment. His mens rea is, at this stage of the enquiry, not of relevance. At the very least, Mr Burrows has admitted sending the complainant emails, an act which meets the definition of a specified act under s 4(1) of the Harassment Act. Accordingly, the Judge made  no  error  in  being  satisfied,  on  the  balance  of  probabilities,  that  Mr Burrows had committed the acts which forms the basis of the offence with which he is charged.

Result

[29]For the reasons given above, the appeal is dismissed.

Churchman J

Solicitors:

Crown Solicitor, Wellington for Crown cc:     The appellant