Butler v Police
[2022] NZCA 445
•20 September 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA238/2022 [2022] NZCA 445 |
| BETWEEN | JESSE WAIARIKI TEMANAVA BUTLER |
| AND | NEW ZEALAND POLICE |
| Court: | Gilbert, Mallon and Wylie JJ |
Counsel: | Appellant in Person |
Judgment: | 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 that application do not engage in any way with the evidential findings made by the District Court Judge. His principal complaint appears to be that “the criminal procedure … was malicious” and has breached a range of provisions including the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. He raises matters prior to his trial, during the District Court trial and the appeal, and subsequently. He says the lower courts and the Crown have “effectively extinguished [his] identity and citizenship” because they have not used his legal name (Jesse Waiariki Temanava Butler) and have thereby made his passport, driver’s licence, university degrees and identity a “fraud”.
As to matters prior to his trial, he says that following his arrest, he lost his Auckland residence and entered the emergency housing programme. Because of the way this was managed, he was living in a “violent sub-world” for 21 months and this interfered with the preparation of his defence. Mr Butler’s concerns about the emergency housing programme, however, do not provide a relevant defence to the criminal charges. Any proposed evidence about this was irrelevant and therefore not wrongly dismissed by the District Court (if it was dismissed as he alleges).
The High Court Judge accepted the delay to trial would have been frustrating and stressful for Mr Butler but was not satisfied that the delay involved any prosecutorial misconduct or prejudice to the fairness of his trial.[14] The issues at trial were confined — on two of the charges there was no dispute about what had happened (a rock was thrown and the fence was damaged), on one of the charges the District Court Judge accepted the neighbour’s version of events (whether Mr Butler had a knife) as she was entitled to do, and found the remaining charge not proven. The High Court Judge also found that some of the delay was caused by a legal aid application, counsel withdrawing and Mr Butler failing to appear on one occasion.[15]
[14]At [22].
[15]At [22].
As to matters during the trial, Mr Butler repeats the concerns that he made on his High Court appeal about inequality of treatment by the Judge. He says the Judge allowed the prosecution to ask “anything they wanted” but limited the questions he was permitted to ask and disallowed any questions of the neighbour about his mental illness. The High Court Judge reviewed the transcript of the evidence and rejected these submissions.[16] He noted that a defended hearing undertaken by a self‑represented defendant is a difficult process and the District Court Judge intervened to explain rules of evidence and procedure and to ensure Mr Butler observed the Evidence Act 2006 requirements.[17]
[16]At [28].
[17]At [28] and [36].
As to matters post trial, Mr Butler says he continues to be subject to the same pre-trial discrimination in housing, medical services and prejudicial treatment, that he is physically weakened from living homeless and that he has no identity to rely on. However, while Mr Butler may see his current situation as linked to the criminal charges, they do not provide a defence to them in law.
Leave to bring a second appeal cannot be granted unless we are satisfied that the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[18] The test is a high one.[19] We are not satisfied this test has been met. There is settled law on s 25 of the New Zealand Bill of Rights Act concerning the minimum standards of criminal procedure including delay to trial.[20] Mr Butler has not pointed to anything that suggests a miscarriage of justice occurred in relation to his convictions.
Result
[18]Criminal Procedure Act 2011, s 237(2).
[19]McAlistair v R [2014] NZCA 175, [2014] 2 NZLR 764.
[20]See for example Martin v Tauranga District Court [1995] 2 NZLR 419 (CA); and R v Williams [2009] NZSC 41, [2009] 2 NZLR 750.
The application for leave to bring a second appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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