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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burrows v Police

Details

AGLC: Burrows v Police [2018] NZHC 1628
Case: [2018] NZHC 1628
Decision Date: 4 July 2018

CaseChat Overview and Summary

Burrows v Police involved judicial review applications by the plaintiff, Wayne John Burrows, against decisions made by the District Court in the course of criminal proceedings against him. The plaintiff sought judicial review of two decisions: the first was the refusal to allow him to cross-examine witnesses at a hearing under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act) and the second was the refusal to provide him with a copy of a victim impact statement. The plaintiff was facing charges of harassment under the Harassment Act 1997. He had been served with a notice requiring him to cease communication with the complainant, but he had allegedly continued to contact her. The plaintiff sought to cross-examine the complainant, her flatmate, and police witnesses in relation to his fitness to stand trial and whether he had a defence of insanity. The plaintiff also sought a copy of the victim impact statement. The court considered whether the District Court had the jurisdiction to order cross-examination at a pre-trial hearing under the CPMIP Act and whether the interests of justice required such an order. The court also considered whether the victim impact statement was subject to the provisions of the Victims’ Rights Act 2002 that limited its disclosure. The court declined both applications for judicial review. It held that the District Court had the jurisdiction to order cross-examination if the interests of justice required it but that there was no basis for such an order in this case. The court also held that the victim impact statement was protected by the Victims’ Rights Act 2002 and that the plaintiff’s application for review was moot because he had already seen almost the entire statement.

Orders