Burrows v Police

[2018] NZHC 1628

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE

CIV 2018-454-7

[2018] NZHC 1628

BETWEEN

WAYNE JOHN BURROWS

Plaintiff

AND

NEW ZEALAND POLICE

First Defendant

AND

DISTRICT COURT

Second Defendant

CIV 2018-454-8

BETWEEN

WAYNE JOHN BURROWS
Plaintiff

AND

NEW ZEALAND POLICE

First Defendant

AND

DISTRICT COURT

Second Defendant

Hearing:

9 May 2018

Counsel:

Plaintiff in Person

T C Tran for First Defendant Second Defendant abides

Judgment:

4 July 2018

JUDGMENT OF ELLIS J

BURROWS v POLICE [2018] NZHC 1628 [4 July 2018]

[1]                   Mr Burrows is presently  facing  two  charges  in  the  District  Court  under ss 8(1)(b) and 8(2) of the Harassment Act 1997 (the Act). He has filed separate applications for judicial review of two decisions made by the District Court in the course of those criminal proceedings. This judgment deals with both applications.

The alleged offending

[2]I take my summary of Mr Burrows’ alleged offending from Collins J’s bail

appeal decision dated August 2017.1 The Judge said:2

[3]                   Mr Burrows is 54 years old. He has no previous convictions. The complainant, A, is 30. They have known each other since 2008. Their relationship has never been anything than a platonic friendship.

[4]                   Mr Burrows lives in Palmerston North. He met A, who lives in Khandallah, Wellington, through her mother. They had a mutual interest in playing Bridge. Ms A became concerned about Mr Burrows’ behaviour and the attention he was paying her. Mr Burrows started sending unsolicited letters, postcards and e-mails. On 11 December 2016, Mr Burrows was served with a notice under the Harassment Act requiring him to desist from communicating with A.

[5]                   It is alleged that on 14 February 2017, Mr Burrows sent 18 pages of emails to A that contained insults. It is also alleged that on 17 February 2017 Mr Burrows approached A on her way to work in central Wellington and that when he saw her he yelled abusive comments at her.

[3]    The present charges against Mr Burrows flow from the above incidents. A restraining order was also made in favour of the complainant, A, on 28 March 2017.

The proceedings in the District Court

[4]    Mr Burrows’ first appearance was in  the  District  Court  at Wellington  on 13 March 2017. He was granted bail.

[5]    He appeared again on 27 March 2017, at which time the Judge ordered a report under s 38(1)(a) and (b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act). The purpose of that report was to advise the court as to

1      Burrows v New Zealand Police [2017] NZHC 2078, discussed further below.

2      Mr Burrows would, I think, take exception to some of the phraseology used by Collins J. But his summary suffices for present purposes.

Mr Burrows’ fitness to plead and/or whether he might have a defence of insanity available to him.

[6]    On 31 March 2017, Mr Burrows applied for, and was granted, a variation of his bail conditions:3

… to try and import some balance between the neutralisation of any perceptible risk of contact with or offending on bail in relation to the complainant and the defendant’s obligations and reasonable restrictions on movement.

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

[8]    Mr Burrows appeared again on 22 May 2017. Through his then counsel, he sought further time to review his position in light of the s 38 report. Mr Burrows orally sought a further variation to his bail to enable him to enter Wellington, which was declined. The Court said a written application should be made.

[9]    On 29 May 2017, Mr Burrows’ attendance at Court was excused due to an incident with Court security. Through his counsel, not guilty pleas were entered on that day. A case review date was set down for 27 July 2017.

[10]   In the interim, Mr Burrows filed a formal application to vary his bail conditions. That application was declined by Judge Mill on 17 July 2017, for reasons that the Judge set out.4 Mr Burrows then filed an appeal to this Court against that decision.

3      New Zealand Police v Burrows [2017] NZDC 6830 at [6].

4      New Zealand Police v Burrows [2017] NZDC 15535.

[11]   At a case review hearing in the District Court on 27 July 2017, Judge Sainsbury noted the contents of the s 38 report and recorded the advice he had been given that suggested that Mr Burrows’ mental health might be deteriorating. That advice caused the Judge to order an updated report under s 38.

[12]   As I understand it, at around this time Mr Burrows’ lawyer received a disclosure package from Police. In it, was a bail memorandum that had been filed by the prosecutor in March. The memorandum referred to a victim impact statement (VIS) made by A, which was said to be to annexed to the memorandum. Mr Burrows received a copy of the documents, including a copy of the VIS which appeared to be incomplete.

[13]   Mr Burrows’ appeal from Judge Mill’s refusal to vary his bail conditions was dismissed by Collins J on 29 August 2017.5 In the course of his judgment Collins J referred to (what is now known to be) a different statement, made by A. He said:

[19] The summary of facts, and A’s statement to the victim advisor record her genuine fear and concern about the unwanted attention she allegedly received from Mr Burrows. A is very concerned that Mr Burrows may again get into his head that he should approach or communicate with her in some way. The incident which is said to have occurred when A was walking to her place of work was, on its face, troubling and an obvious source of distress for A.

[14]   These events caused Mr Burrows to seek proper (full) disclosure of the VIS to him.6

[15]   On 21 September 2017, Dr Barry-Walsh provided an updated s 38 report. Again, his conclusion was that Mr Burrows did not have a defence of insanity and was fit to stand trial.

[16]   On 26 October 2017, Judge Mill noted that because the CPMIP Act process had been triggered, a hearing under ss 9 and 14) of that Act would be necessary formally  to  determine  the  fitness  issue.7   That  hearing  was  scheduled  for     23 November 2017 before Judge Hobbs.

5      Burrows v New Zealand Police, above n 1.

6      As I understand it, Mr Burrows did not at that point appreciate there were two statements.

7      See R v McKay [2009] NZCA 378, [2010] NZLR 441.

The first impugned decision

[17]   The substantive CPMIP Act hearing did not in fact occur on 23 November. It was later recorded by Judge Hobbs that Mr Burrows (who had appeared in person) had indicated that he required the complainant, her flatmate (who was a witness to the second incident of alleged harassment) and possibly other police witnesses who had made statements to be available for cross-examination.8

[18]   The Judge noted that Mr Burrows did not accept that the application was an oral evidence application under s 90 and 92 of the Criminal Procedure Act 2011 (the CPA) and relied instead on s 25 of the New Zealand Bill of Rights Act 1990 (the NZBORA). The Judge noted that, as a result of the repeal of the Summary Proceedings Act 1957 (the SPA), it was unclear whether ss 90 and 92 of the CPA applied in the context of a s 9 hearing. He said that in the absence of appellate guidance District Court judges had been divided on the issue of whether there was jurisdiction to make an oral evidence order during such a hearing. He articulated three possibilities:9

(a)that jurisdiction existed by virtue of s 10(3)(b) of the CPMIP Act;

(b)that jurisdiction existed on some wider basis, namely that the Court had the power to compel witnesses to attend and give evidence at a s 9 hearing if the interests of justice required it; or

(c)that there was no such jurisdiction.

[19]   Judge Hobbs went on to record his own view that the necessary jurisdiction did exist (although he declined to say on what basis) but that he would not make the order sought in this case. Essentially the reasons he gave were that:

8      New Zealand Police v Burrows [2017] NZDC 26900.

9 At [17].

(a)the  witnesses  could  not  give  helpful   evidence   about   whether Mr Burrows had committed the actus reus of the offences with which he had been charged, namely whether there was a pattern of behaviour involving the doing of a “specified act” as defined in the Act;10

(b)the witnesses also could not give evidence as to Mr Burrows’ state of mind or knowledge at the relevant time, which (the Judge said)

Mr Burrows had said should be the “real focus”; and

(c)based on the psychiatric reports to date, it was unlikely that Mr Burrows would be found unfit to stand trial and so he was in less jeopardy from the s 9 hearing than might otherwise be the case.11

[20]   The Judge therefore concluded that the s 9 hearing would proceed on the basis of written statements and other evidence submitted by the prosecutor or Mr Burrows under s 10(3)(c). He also recorded the prosecution’s concern that Mr Burrows had made the application for the purpose of re-engaging in his harassment of the complainant, although he said that there was nothing before him that would justify concluding that it had been made for such an improper purpose.

[21]   It is the decision to decline Mr Burrows’ application for cross-examination that is the subject of the first application for judicial review. The s 9 hearing now stands adjourned, pending the outcome of these proceedings.

The second impugned decision

[22]   On 20 December 2017, Judge Mill ruled on Mr Burrows’ application to obtain a copy of the VIS.12 He ordered that, in accordance with s 23 of the Victims’ Rights Act 2002 (the VRA), the VIS could be disclosed to Mr Burrows by having him read it in the presence of a member of the Registry but that he was not to be given a copy to keep, or make notes of the contents.

10     Largely because the doing of the acts were not disputed.

11     At [39] citing the Court of Appeal in Ruka v R [2011] NZCA 404, (2011) 25 CRNZ 768 at [45].

12     New Zealand Police v Burrows [2017] NZDC 28078.

[23]Mr Burrows also seeks judicial review of that decision.

Discussion

Second decision

[24]   I deal with the application for review of the second decision, first. That is because for all practical intents and purposes it resolved itself during the hearing before me, in the following way.

[25]   First, it became apparent from discussions with Mr Tran that there were two different “VIS” documents. The first was a VIS properly so-called. I shall come back to that shortly. The other was a record made by a victims’ adviser of a conversation she had had with A for the purposes of the bail hearing. Both documents have been placed before the Court by the prosecution at some time or another.

[26]   Secondly, it became apparent that the document which had been included in the disclosure bundle was an almost complete copy of the VIS properly so-called. Due to what appears to be photocopying error, the last two lines of the first page, and the third page (which contained only a date and a signature) were missing from the copy in Mr Burrows’ possession. Given that that horse had effectively already bolted, it was agreed that the second decision was more or less moot. Mr Tran had no objection to Mr Burrows seeing the missing two lines.

[27]   Thirdly, Mr Tran could see no objection to Mr Burrows seeing the other statement, either. Arguably, it is not even protected by the VRA. He said, and I accept, that it likely would have been made available to Mr Burrows’  lawyer  back  in March 2017 and that Mr Burrows would have been entitled to see it then. Whether Mr Burrows’ lawyer did in fact get a copy (and there is some suggestion that he did not) is a rabbit hole down which it is unnecessary to go.

[28]   For completeness, I record that Mr Burrows’ application for review was originally advanced on the basis that the VIS is not a VIS whose disclosure was limited by ss 23 to 25 of the VRA, and that the Judge was wrong not to permit him to have and retain a copy. The basis for that contention was that the VIS did not fall within

the definition contained in s 17AA of the VRA.13    But because it transpires that     Mr Burrows has had a copy of the VIS properly-so-called for some time now (apart from the missing two lines) and no objection has been raised to him having and keeping a complete copy, the issue is now clearly moot. I therefore say no more about it.

First decision

[29]   As Judge Hobbs identified, the question that was the subject of the first decision was whether, in the circumstances of Mr Burrows’ case, it was necessary in the interests of justice to permit him to cross examine witnesses at the s 9 hearing.

[30]   The principal person that Mr Burrows’ wanted to cross-examine was the complainant, A, although he also wanted to question her flatmate (who was present for one of the alleged acts of harassment and became involved in an altercation with Mr Burrows) and possibly a police officer.

[31]   It is therefore worth recording at the outset that, regardless of the outcome of this review application he would not be permitted to cross-examine A in person, due to s 95 of the Evidence Act 2006. So unless he is able and willing to engage a lawyer for the purposes of the fitness hearing that must be the end of that particular matter.

[32]   For completeness, however, I deal with the wider issues as well. As it happens, my analysis relating to that issue leads to the same result.

[33]For present purposes, the critical provision is s 9 of the CPMIP Act. It states:

9Court 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.

13  Essentially Mr Burrows contended that it was not such a statement because the charges against   him have not yet been proved (and so it cannot reasonably be said that the statement “is to be” submitted for the purposes of sentencing) and he has not requested a sentence indication.

[34]   Where the issue of fitness arises before trial, the s 9 inquiry is governed by    s 10, which provides:

10Inquiry before trial into defendant's involvement in the offence

(1)This section applies if the question whether the defendant is unfit to stand trial arises before the trial.

(2)The court must ascertain whether the court is satisfied of the matter specified in section 9.

(3)For the purposes of subsection (2), the court may consider—

(a)any formal statements that have been filed under section 85 of the Criminal Procedure Act 2011:

(b)any oral evidence that has been taken in accordance with an order made under section 92 of the Criminal Procedure Act 2011:

(c)any other evidence that is submitted by the prosecutor or defendant.

[35]   As regards the District Court’s jurisdiction order cross-examination at a pre-trial s 9 hearing, I record my agreement with Judge Hobbs that, regardless of whether an oral evidence order can be made specifically for that purpose, the District Court is undoubtedly able to permit cross-examination at such a hearing if the interests of justice require. That is simply a matter of the Court having the inherent powers to do what needs to be done to give effect to its own jurisdiction. And given the nature of the s 9 inquiry (and its potential outcome) it may well be that in some cases natural justice might require the cross-examination of witnesses.

[36]   In terms of the specific and substantive s 9 inquiry, the Court will need to be satisfied that the evidence against Mr Burrows is sufficient to establish that he “caused the act or omission that forms the basis of the offence” with which he is charged. The charge faced by Mr Burrows is articulated in the Act as follows:14

(1)Every person commits an offence who harasses another person in any case where—

…

14     Harassment Act 1997, s 8(1)

(b)the first-mentioned person knows that the harassment is likely to cause the other person, given his or her particular circumstances, to reasonably fear for—

(i)that other person’s safety; or

(ii)the safety of any person with whom that other person is in a family relationship.

[37]   It is therefore the act of harassment that forms the basis of the offence. And the meaning of that term is to be gleaned from ss 3 to 5 of the Act, which relevantly (for present purposes) provide:15

3Meaning of harassment

(1)For the purposes of this Act, a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.

(2)To avoid any doubt,—

(a)the specified acts required for the purposes of subsection (1) may be the same type of specified act on each separate occasion, or different types of specified acts:

(b)the specified acts need not be done to the same person on each separate occasion, as long as the pattern of behaviour is directed against the same person.

…

4Meaning of specified act

(1)For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:

(a)watching, loitering near, or preventing or hindering access to or from, that person's place of residence, business, employment, or any other place that the person frequents for any purpose:

(b)following, stopping, or accosting that person:

…

(d)making contact with that person (whether by telephone, correspondence, electronic communication, or in any other way):

15     Section 5 includes within the meaning of an act “done to” a person, an act done to a third person, in certain circumstances (which are not material here).

(e)giving offensive material to that person, or leaving it where it will be found by, given to, or brought to the attention of, that person:

…

(f)acting in any other way—

(i)that causes that person (person A) to fear for his or her safety; and

(ii)that would cause a reasonable person in person A's particular circumstances to fear for his or her safety.

…

[38]   In my view, Mr Burrows’ knowledge about, or perception of, the effect any such act would have on A, does not form part of an act of harassment (the actus reus) which is what must be established under s 9. Rather, that state of knowledge is the relevant mens rea. Whether the impugned act is an act of harassment does not depend on Mr Burrows’ state of mind.16 But it is only if he has the requisite state of mind that the act of harassment becomes criminal.17

[39]   That said, however, the ambit of the s 9 inquiry here (ie whether it is limited to the actus reus or extends to the mens rea) makes little difference to the cross-examination issue for the reasons that follow.

[40]   On the one hand, if the hearing has the more limited (actus reus) focus it is difficult to see what purpose cross-examination  at  the  s  9  hearing  could  serve. Mr Burrows’ contention that he wishes to cross-examine A to establish (or attack) her credibility and to establish whether the harassment as defined has occurred loses any force. The physical acts said to constitute the harassment are not seriously in dispute. And even if it is alleged that one or more of those acts fall within s 4(1)(f) (and I am

16 And so an offence under s 8 of the Act can be contrasted with more difficult cases where the actus reus itself imports or implies a statement of mind – see the discussion in R v Te Moni [2009] NZCA 560 at [77], referring to Warren Brookbanks “Special Hearings under CPMIPA” [2009] NZLJ 30.

17  If he is found to have committed the act of harassment but is not fit to stand trial then he could   only be detained as a special patient under the CPMIP Act if the Court is satisfied that the making of such an order is necessary in the interests of the public or any person or class of person who may be affected by the court’s decision: s 24. Otherwise he could only be made subject to a treatment order or released: s 25.

not sure that it is) then A’s credibility will barely be in issue; her evidence about any

fear for her safety still needs to be proved by the Crown to be reasonable.

[41]   Equally,  anything  that  A  might  say  can  have  little  bearing  on  what   Mr Burrows’ state of mind was, if the s 9 inquiry were to extend that far. This was the point made by Judge Hobbs. Mr Burrows’ state of mind would be established in the usual way - by reference to his actions, his evidence (if any) and the wider circumstances, including the history of the matter.

[42]   As I understood it, Mr Burrows’ other principal concern was that if “calling out” or “sending letters and emails” constitute harassment, then “an innocent person could be convicted”. But that concern is answered by the fact that mens rea must be proved at trial. And even if there were to be no trial (which is unlikely here, given the medical evidence that Mr Burrows is fit to plead) he would only be treated and/or detained under the CPMIP Act as a result of the s 9 inquiry if it were shown that he posed an ongoing risk.18

Result

[43]In summary:

(a)the application for judicial review  of  Judge  Mill’s  refusal  to  let  Mr Burrows have a copy of the VIS is moot and is declined; and

(b)the application for judicial review of Judge Hobbs’ refusal to permit Mr Burrows to cross-examine witnesses at the CPMIP Act hearing is declined, for the reasons I have given.

Rebecca Ellis J

18     See the previous footnote.