Butler v Police - [2021] NZHC 3385

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-404-406

[2021] NZHC 3385

BETWEEN
BERTRAND TEMANAVA BUTLER also known as JESSE WAIARIKI TEMANAVA BUTLER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 December 2021

Appearances:

J W T (or B T) Butler Appellant (in person) M G McClenaghan for Respondent

Judgment:

6 December 2021

ORAL JUDGMENT OF OSBORNE J

This judgment was delivered by me on 10 December 2021 at 10.00 am Registrar/Deputy Registrar

BUTLER v NEW ZEALAND POLICE [2021] NZHC 3385 [10 December 2021]

Introduction

[1] The appellant, Jesse Butler, was convicted1 on 6 July 2020 following a judge- alone trial by Judge Bouchier in the North Shore District Court on charges of possession of an offensive weapon,2 assault,3 and intentional damage.4 The Judge sentenced Mr Butler to 45 hours’ community work and ordered him to pay reparation of $375. Mr Butler appeals against his convictions on the basis of what he describes as unfair procedure. He does not take issue with the sentence.

[2] The appeal was filed out of time. The respondent does not take issue with the late filing and leave to appeal will be granted.

[3] I make this note in relation to Mr Butler’s name. Mr Butler informs me that he changed his name by deed poll, registering through North Shore in or around 2001 and that his correct name is now Jesse Waiariki Temanava Butler. I will turn now to the facts.

Facts

[4] Mr Butler was the neighbour of the victims in this matter. It is apparent that a neighbourly dispute arose. It is fair to say the relationship was difficult. Following repeated issues, the victims had Mr Butler trespassed from their address for a period of two years commencing in February 2017.

[5] On the afternoon of 2 October 2018, the victims were in their backyard playing with their dogs. Mr Butler became angry at the dogs barking and started abusing the victims. He yelled some profanities across the fence that appeared to be directed towards the female victim. The male victim, Jack Lawson, then went next door to speak to Mr Butler. They met in Mr Butler’s driveway. There was an oral altercation which resulted in Mr Butler throwing a large rock at Mr Lawson. It hit Mr Lawson’s right thigh and caused an abrasion and bruise. Mr Butler then retreated to his house.

1      Police v Butler [2020] NZDC 23059.
2      Crimes Act 1961, s 202A(4)(b) – maximum penalty of three years’ imprisonment.
3      Crimes Act, s 196 – maximum penalty of one year’s imprisonment.
4      Summary Offences Act 1981, s 11(1)(a) – maximum penalty of three months’ imprisonment or a fine of $2,000.

He soon returned to the driveway and marched towards Mr Lawson. The prosecution case was that he was holding a large knife and making threats. Mr Lawson retreated into his house. Mr Butler then smashed part of the fence adjoining the Lawson house with a tool, initially…

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: [2021] NZHC 3385
Decision Date: 6 December 2021

CaseChat Overview and Summary

Jesse Butler, also known as Bertrand Temanava Butler, appeals against his convictions for possession of an offensive weapon, assault, and intentional damage, which were upheld in the North Shore District Court. The appeal was filed out of time, but the respondent did not object to the late filing, and leave to appeal was granted. The appellant contends that his trial was unfair due to several factors, including the delay before the trial, the judge's behaviour, the refusal of a cross-claim ordered by Judge Sinclair, and the judge's intervention in cross-examination. The court considered each of these arguments in turn.

The court found that the delay of 21 months before the trial was lengthy but not unjustifiable, as it was primarily due to institutional factors and procedural matters, rather than prosecutorial misconduct. The court also found that the judge's behaviour, while possibly frustrating for the appellant, was not inappropriate or biased. The court found that the appellant had misconstrued the judge's refusal to allow a cross-claim as ordered by Judge Sinclair, and that there was no error in the judge's intervention in cross-examination, which was in accordance with the Evidence Act 2006.

The court found that the judge's assessment of the evidence was detailed, logical, and supported by the evidence presented, and that there was no miscarriage of justice. The appeal was dismissed, and leave to appeal was granted. The appellant was represented in person, and the respondent was represented by M G McClenaghan.

Orders