Butler v Police - [2016] NZCA 27

IN THE COURT OF APPEAL OF NEW ZEALAND

CA640/2015
[2016] NZCA 27

BETWEEN	JESSE WAIARIKI TEMANAUA BUTLER Applicantt
AND	NEW ZEALAND POLICE Respondent

Hearing:	9 February 2016
Court:	Miller, Fogarty and Toogood JJ
Counsel:	Applicant in person A Ewing for Respondent
Judgment:	24 February 2016 at 4.00 pm

JUDGMENT OF THE COURT

A The application for leave to adduce fresh evidence is declined.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

This is an application for leave to bring a second appeal against Mr Butler’s convictions on charges of common assault and threatening to kill.[1]
[1]Under section 9 of the Summary Offences Act 1981 and section 306 of the Crimes Act 1961 respectively.
The charges arose when the complainant, a security officer at Massey University’s Albany campus, tried to serve a trespass notice on Mr Butler. It was said that Mr Butler attempted to punch the complainant, spat on the complainant’s face and threatened to kill the complainant. In the District Court, Judge Pippa Sinclair found the charges proved after hearing from both parties and the arresting officers, and in a careful judgment Moore J dismissed Mr Butler’s appeal against conviction and sentence in the High Court.[2]
[2]New Zealand Police v Butler DC North Shore CRI-2014-044-669, 21 January 2015 and Butler v New Zealand Police [2015] NZHC 2577.
As we explained to Mr Butler, a second appeal does not lie to this Court as of right. We must be satisfied that the appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[3] The threshold is high.[4] In particular, not every error at trial will amount to a miscarriage.[5] The Court is slow to grant leave where success for the appellant would require that we reverse concurrent findings of fact below.
[3]Sections 237(2) and s 253(3) of the Criminal Procedure Act 2011.
[4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
[5]At [38].
Mr Butler’s first complaint was that he was forced to represent himself at the defended hearing in the District Court, contrary to his wishes. He said he was refused legal aid for political reasons. This complaint might justify leave had it had been made out on the facts, but it was not. Judge Sinclair recorded that Mr Butler chose to represent himself, making it “very clear” that that was his preference. On appeal Moore J reviewed the evidence, noting that Mr Butler did have representation but counsel withdrew with his approval and he then elected to represent himself. Further, he does not appear to have been disadvantaged. With the assistance of the trial Judge his case was clearly explained. On those facts, no question arises of a breach of Mr Butler’s rights.[6]
[6]Mount v R [2015] NZCA 489 at [39]–[44].
Mr Butler next complained that he was not given his rights immediately upon arrest, or…

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.

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Details

Case: [2016] NZCA 27
Decision Date: 24 February 2016 at 4.00 pm

CaseChat Overview and Summary

Jesse Waiariki Temanua Butler filed an appeal against his convictions for common assault and threatening to kill, which originated from an incident where he allegedly attacked a security officer at Massey University's Albany campus. The Court of Appeal of New Zealand considered Mr Butler's application for leave to appeal his convictions and sentences, which had previously been dismissed by the High Court. The appeal hinged on several key issues, including whether Mr Butler was forced to represent himself in court due to a denial of legal aid, whether he was deprived of his rights immediately upon arrest, and whether his appeal should have been joined with a civil proceeding against the police.

The Court of Appeal found that Mr Butler's claim of being forced to represent himself was unsubstantiated, as the record indicated that he had chosen to do so and did not appear to be disadvantaged by this decision. The Court also rejected the argument that Mr Butler was not informed of his rights immediately upon arrest, holding that the delay in reading him his rights was reasonable given his agitation at the time. Furthermore, the Court found that the contention that the appeal should have been joined with a civil proceeding against the police was incorrect, as the civil and criminal jurisdictions are separate. The Court did not accept the fresh evidence submitted by Mr Butler, as it did not relate to the conclusions reached in the lower courts. Ultimately, the Court found no basis for allowing the appeal, dismissing the application for leave to appeal.

The Court of Appeal dismissed the application for leave to adduce fresh evidence and denied the application for leave to appeal, upholding the previous decisions of the District Court and the High Court. Mr Butler's appeal was dismissed on the grounds that there was no miscarriage of justice or matter of general or public importance warranting further review. The Court emphasized the high threshold for granting leave to appeal in such cases, and found that Mr Butler's arguments did not meet this standard.

Orders