Butler v Police - [2022] NZCA 445

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA238/2022
[2022] NZCA 445

BETWEEN	JESSE WAIARIKI TEMANAVA BUTLER Appellant
AND	NEW ZEALAND POLICE Respondent

Court:	Gilbert, Mallon and Wylie JJ
Counsel:	Appellant in Person T R Simpson for Respondent
Judgment: (On the papers)	20 September 2022 at 9.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

The applicant, Jesse Butler, was convicted of possessing an offensive weapon,[1] assault[2] and intentional damage[3] following a judge alone trial in the District Court.[4] His appeal against conviction to the High Court was dismissed.[5] He now seeks leave to bring a second appeal. An extension of time to bring his leave application has previously been granted by Collins J in a minute dated 23 June 2022.

Background

[1]Crimes Act 1961, s 202A(4)(b).

[2]Section 196.

[3]Summary Offences Act 1981, s 11(1)(a).

[4]Police v Butler [2020] NZDC 23059 [District Court judgment].

[5]Butler v Police [2021] NZHC 3385 [High Court judgment].

The charges on which Mr Butler was convicted related to a dispute with a neighbour on 2 October 2018.
In convicting Mr Butler of assault, the District Court Judge found that Mr Butler had thrown a rock at his neighbour that left a mark on his leg.[6] Mr Butler did not dispute that he had done so but claimed self-defence or defence of property.[7] The Judge rejected this because she regarded his actions as going far beyond what was reasonable in the circumstances.[8]
[6]District Court trial, above n 4, at [7].
[7]At [5].
[8]At [21].
In convicting Mr Butler of possession of an offensive weapon, she accepted the neighbour’s evidence that Mr Butler rushed at the neighbour with a knife in his hand, indicating an intention to threaten violence.[9] She rejected Mr Butler’s denial that he had a knife. She did so because she accepted the neighbour’s evidence that Mr Butler had lost his temper far earlier than Mr Butler had said in his evidence.[10]
[9]At [22].
[10]At [23].
In convicting Mr Butler of intentional damage, she noted that Mr Butler accepted that he had lost his temper at this point and had damaged the neighbour’s fence with a hoe.[11]
[11]At [24].
The Judge dismissed a charge of trespass because the evidence did not establish that Mr Butler had gone onto the neighbour’s property.[12]
[12]At [25].
On appeal to the High Court, Mr Butler contended that the District Court trial had been unfair because of the delay to trial, and because of the Judge’s behaviour including her refusal to allow a cross-claim and her interventions in cross‑examination. The High Court Judge rejected each of these matters and found that the District Court Judge was entitled to reach the conclusions that she did.[13]

Assessment

[13]High Court judgment, above n 5, at [25], [29], [33] and [39].

Mr Butler’s application for leave to bring a second appeal and his submissions in support of…

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 Butler v Police

Details

AGLC: Butler v Police [2022] NZCA 445
Case: [2022] NZCA 445
Decision Date: 20 September 2022 at 9.30 am

CaseChat Overview and Summary

Jesse Butler, the appellant, sought leave to bring a second appeal against his conviction for possessing an offensive weapon, assault, and intentional damage, following a trial and subsequent dismissal of his appeal in the High Court. The Court of Appeal, comprising Gilbert, Mallon, and Wylie JJ, declined the application for leave to appeal. The appellant's argument focused on alleged procedural unfairness, including the delay in trial, the District Court Judge's conduct, and the use of his legal name. The Court found that the appellant's complaints did not engage with the factual findings of the District Court and did not meet the high threshold required for a second appeal, which necessitates a matter of general or public importance or a potential miscarriage of justice. The Court of Appeal was satisfied that the District Court Judge had correctly applied the law and that the appellant's situation post-trial, while unfortunate, did not provide a legal defence to the criminal charges. The application for leave to bring a second appeal was declined, and no further appeal will be heard on the matter.

The Court of Appeal examined the appellant's claims of procedural unfairness and discrimination, considering both pre-trial and trial-related issues. Regarding the delay in the trial, the Court noted that while it may have been frustrating for the appellant, it did not amount to prosecutorial misconduct or prejudice to the fairness of the trial. The Court found that the appellant's concerns about the emergency housing programme and its impact on his defence preparation were not relevant to the charges against him. The Court also rejected the appellant's claims of unequal treatment during the trial, noting that the District Court Judge had intervened to ensure the appellant followed the Evidence Act 2006 requirements and to explain rules of evidence and procedure. The Court concluded that the appellant's situation post-trial, including the alleged discrimination and his physical condition, did not provide a legal defence to the criminal charges and did not meet the criteria for a second appeal. The Court found no miscarriage of justice had occurred in the appellant's convictions, and the application for leave to bring a second appeal was declined.

Orders