Butler v Attorney-General on behalf of the Police

[2014] NZHC 1248

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-108 [2014] NZHC 1248

BETWEEN

JESSE WAIARIKI TEMANAVA

BUTLER Applicant

AND

THE ATTORNEY-GENERAL on behalf of the NEW ZEALAND POLICE Respondent

Hearing:	14 May 2014 and by subsequent memoranda
Appearances:	Applicant in person M Harborow for Respondent
Judgment:	6 June 2014

JUDGMENT OF LANG J

This judgment was delivered by me on 6 June 2014 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

JESSE WAIARIKI TEMANAVA BUTLER v THE ATTORNEY-GENERAL on behalf of the NEW ZEALAND POLICE [2014] NZHC 1248 [6 June 2014]

[1]      Mr Butler faces a charge in the District Court of threatening to kill one Callum Ross Blair.   He has now applied for an order under s 70 of the Criminal Procedure Act 2011(“the Act”) transferring the charge to this Court for trial.

[2]      Mr  Butler  originally instituted  the  proceeding  as  a  civil  proceeding,  but Woolford J directed on 5 May 2014 that it be reconfigured as an application in the criminal jurisdiction of this Court under the Act.

Background

[3]      The summary of facts records that on the evening of 17 February 2014, Mr Butler was at his home address in Brown’s Bay.  Mr Blair then arrived at the address and spoke to Mr Butler.  Mr Blair issued Mr Butler with a trespass notice prohibiting him from entering the Massey University Campus in Albany.  During this process, Mr Butler is said to have become angry and told Mr Blair to leave his property.

[4]      The  summary  records  that  while  Mr  Blair  was  walking  away  from  the address, Mr Butler chased him.  He then kicked a nearby vehicle and threatened to kill Mr Blair, saying “I’m fucking going to kill you”.   Mr Butler then allegedly continued to threaten Mr Blair in an aggressive manner, and then threw a punch at him. A physical struggle then ensued, and Mr Blair was able to restrain Mr Butler on the ground.  Police were called by members of the public and arrived a short time later.

[5]      When the police asked Mr Butler for his comment, he responded “I have recently taken Massey to the High Court and them doing this has made my day”.  I infer from this comment that Mr Blair has some connection with the Massey University Campus in Albany, and that Mr Butler has an ongoing dispute with that institution.

Grounds of application

[6]      Mr Butler points out that he has taken an existing civil proceeding in this

Court against the police and Massey University in which he alleges that they have

been guilty of racism, cruelty, torture and malfeasance.  He considers that the issues that this dispute raises are sufficiently important that the criminal charge should also be tried in the High Court.

Jurisdiction

[7]      Section 70 of the  Act permits either party to apply to a High Court Judge for an order directing that the defendant be tried in the High Court.  They are entitled to make written submissions in relation to such an application, but no party is entitled to be heard.  In determining whether the defendant is to be tried in the District Court or the High Court, the Judge is required to consider:

(a)       Any information provided by the District Court about its capacity to hold the trial; and

(b)      Any submissions by the prosecutor and the defendant; and

(c)       The matters listed in s 67(4)(b) of the Act.

I have now received submissions filed on behalf of the Crown and Mr Butler.

[8]      Section 67(4) prescribes the matters that a District Court Judge must take into account when making a recommendation to a High Court Judge as to whether or not a protocol offence should be heard in the High Court or the District Court.   It requires the District Court Judge to consider the following matters:

(i)     the nature and seriousness of the offence charged; and

(ii)     the complexity of the factual and legal issues likely to arise in the proceeding; and

(iii)    the likelihood that the proceeding will be of wide public concern; and

(iv)    any need for enhanced security or facilities during the trial that are not readily available in the District Court; and

(iv)    the desirability of the prompt disposal of trials and the respective workloads of the High Court and the District Court in the locality of the trial; and

(v)     the likelihood of a sentence beyond the jurisdiction of the District

Court; and

(vi)    the interests of justice generally.

Decision

[9]      The present case does not pass the threshold for trial in the High Court.  It is a minor charge that is unlikely to result in a sentence of imprisonment, particularly given the fact that Mr Butler has no previous convictions.   It raises no complex factual or legal issues, and it is inconceivable that the proceeding will be of any public concern.  It is also likely that the trial will be of short duration, perhaps one or two days. The District Court ought to be able to accommodate a trial of that duration prior to the end of the year.

[10]     The interests of justice generally are also relevant.  The criminal jurisdiction of  this  Court  needs  to  be  reserved  for  cases  that  are  sufficiently  complex  or significant that the interests of justice require them to be heard in the High Court. Nothing that Mr Butler has advanced in support of the application persuades me that the charge against him should be tried in the High Court.

Result

[11]     The application is dismissed.

Lang J

Solicitors:

Crown Solicitor, Auckland

Copy to: Applicant