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 described by Mr Lawson in his evidence as a pickaxe but later explained by Mr Butler to be a reference to a hoe. Police were called. As a result, Mr Butler was arrested and charged.

Principles on appeal

[6]    The Court may only allow an appeal against conviction if satisfied, in the case of a judge-alone trial, that the Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.”5 A miscarriage of justice means an error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.6

[7]    The appeal proceeds by way of rehearing. This Court is required to form a view of the facts.7 If this Court reaches a different view on the evidence, it follows that the trial judge necessarily will have erred and the appeal must be allowed.8 The onus is on the appellant to show that an error occurred.

The District Court hearing

The evidence

[8]    Judge Bouchier began by reciting the charges. She noted Mr Butler had raised self-defence and/or defence of property. The Judge recounted Mr Lawson’s evidence of the altercation. Mr Lawson had given evidence that he had been playing at home with his dogs when Mr Butler started yelling profanities at his mother. Mr Lawson said this outburst angered him and he decided to approach Mr Butler. After walking to Mr Butler’s driveway, Mr Lawson said he saw Mr Butler approach with a large rock in his hand. He said Mr Butler threw the rock at him, hitting his thigh. He produced

5      Criminal Procedure Act 2011, s 232(2)(b)–(c).

6      Section 232(4).

7      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].

8 At [38].

a photograph as evidence, which indicated the abrasion and bruise on his thigh where the rock hit him. He gave evidence Mr Butler went inside his house and returned brandishing a knife. He said the knife was some eight to 10 inches long and that Mr Butler ran at him with it at full speed. Mr Lawson said Mr Butler, while standing at the verge of his driveway, then threatened to kill him and his family and to poison his dogs.

[9]    Mr Lawson said Mr Butler then came to the front of Mr Lawson’s property holding a pickaxe and again threatened his family and dogs. He said his mother yelled at him to come inside and they both talked to the police. Mr Lawson described hearing banging on the side of the house and yelling, and he saw a cooking bowl and metal pots come over the fence and land in the Lawsons’ front yard. He then saw the whole front fence shaking as Mr Butler used the pickaxe to damage the fence. The Judge identified that photographs produced in evidence showed damage to the front of the fence. Mr Lawson said Mr Butler eventually ceased hitting the fence but continued to orally threaten him and the animals before the police arrived. The Judge noted the photographs demonstrated the damage to the fence.

[10]   Judge Bouchier then referred to the evidence of Mr Lawson’s mother, Shiree Lawson. She said that on the day she was playing with the dogs when Mr Butler started shouting offensive words to her. She said Mr Lawson became upset and wanted to approach Mr Butler. She could not fully see the confrontation but she heard her son say: “You threw a rock at me” and that he was standing at the front of their property. Mrs Lawson said she then heard running and the mention of a knife and yelled at her son to come back inside. She recounted Mr Butler making various threats and called the police. While she was calling them, she recalled hearing thuds against the side of the house, a shattering noise and things breaking. She said Mr Butler was again yelling abuse and threats. She then observed the fence shaking with each thud and blow against it, and saw a bowl fly into the front yard. After that the police arrived. Each of the Lawsons denied knowledge of a photograph showing damage to Mr Butler’s knee. Mr Lawson denied following Mr Butler and striking at him.

[11]   The Judge also reviewed evidence from a Constable Young who had attended the scene. She described being greeted by the Lawsons. She observed the injury to

Mr Lawson’s thigh. She took photographs of the damage to the property and of items that had been thrown into it. She located a rock outside Mr Butler’s address. She then arrested Mr Butler and undertook a video interview of him, which was exculpatory.

[12]   Mr Butler elected to give evidence. He said Mr Lawson had arrived at his driveway manically screaming and cursing, and would not leave. Mr Butler said he told the neighbour to leave. He said Mr Lawson refused. Mr Butler, thinking Mr Lawson had something in his hand, threw a rock at Mr Lawson. He admitted aiming at Mr Lawson’s leg from short-range. He then described running down the driveway and being pursued by Mr Lawson. He said Mr Lawson punched him in the back of the head and caused him to fall over, hurting his knee. Mr Butler said he then ran at Mr Lawson as he was concerned about Mr Lawson damaging his property because he perceived Mr Lawson to be manic, violent and prepared to fight. In cross- examination, Mr Butler admitted being angry. He admitted he had damaged the fence and thrown a bowl into the Lawsons’ property. He denied approaching Mr Lawson with a knife. In relation to the damage to the fence, he said the tool was not a pickaxe but a hoe.

The Judge’s findings

[13]   Judge Bouchier, having reviewed that evidence, was satisfied the prosecution had negatived Mr Butler’s assertion of self-defence or property-defence as his actions in throwing the rock at Mr Lawson went “far beyond anything that could possibly have been reasonable in these circumstances”.9 Accordingly, Mr Butler having accepted that he intended to throw the rock, the Judge convicted him of the charge of assault.

[14]   The Judge considered Mr Butler was not as calm as he had suggested in his evidence and that he had lost control of his temper earlier in the situation than he had accepted. The Judge rejected Mr Butler’s explanation that he did not have the knife. Her Honour was satisfied the knife was an offensive weapon and that Mr Butler did in fact rush at Mr Lawson with it, showing an intention to commit an offence involving the threat of violence. On this basis, she convicted Mr Butler on the charge of possession of an offensive weapon.

9      Police v Butler, above n 1, at [21].

[15]   The Judge also convicted Mr Butler on the charge of intentional damage as Mr Butler had clearly accepted he lost his temper, he obtained what he said was a hoe and he then damaged the boundary wooden fence.

[16]   The Judge finally turned to the fourth charge — of trespass. Mr Butler had acknowledged trespass notices had been served on him in 2017. However, the Judge found the evidence did not establish that there was any trespass onto the Lawsons’ property. She was not satisfied that the throwing of goods onto that property amounted to trespass. Accordingly, the charge was dismissed.

[17]   In sentencing Mr Butler, the Judge ordered that he pay reparation in the sum of $375 on the charge of intentional damage. In considering the sentencing for Mr Butler on the charges of assault and possession of an offensive weapon, her Honour noted that the proceeding had been on foot since October 2018 and had taken time to come before the Court. Mr Butler had made numerous appearances on the matter and had been on restrictive bail conditions. The Judge also recognised the need to take into account the purposes and principles of sentencing and, on that basis, she ordered Mr Butler to serve 45 hours of community work on the charges of assault and possession of an offensive weapon.

This appeal

[18]   On this appeal, as in the Court below, Mr Butler represented himself. The basis of Mr Butler’s argument on appeal can be focused on what Mr Butler himself described as the “unfair procedure” of his Judge-alone trial. That claim can be separated into four points:

(a)the delay before the trial took place;

(b)the Judge’s behaviour;

(c)the refusal of a cross-claim which Mr Butler understood to have been ordered by Judge Sinclair; and

(d)the Judge’s intervention in cross-examination.

My analysis

Delay

[19]   Mr Butler submits the delay in the proceeding coming to trial was undue and unfair. He first appeared in the District Court on 8 October 2018 and his trial did not take place until 6 July 2020. Therefore, there was a delay of 21 months.

[20]   Section 25(b) of the New Zealand Bill of Rights Act 1990 upholds the right of a defendant in a criminal case to be tried without “undue delay”. In Williams v R, the Supreme Court affirmed that a court may grant a stay of proceedings if it finds the delay is undue, which it viewed as synonymous with delay being unjustifiable.10 The Court elaborated as follows:11

[12]    Whether there has been undue delay in a particular case is a function of time, cause and circumstance. Undue in this context is synonymous with unjustifiable. An accused may acquiesce in the delay, whether in the expectation that it will make the task of the prosecution more difficult or because it defers the day of reckoning. … there is no obligation on any accused to progress matters towards trial, or to protest about delay; the obligation is on the prosecution to ensure trial without undue delay. Whether delay is attributable to the Courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted.

…

[18] The remedy for undue delay in an accused coming to  trial must  provide a reasonable and proportionate response to that delay. A stay is not a mandatory, or even a usual remedy. Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a Court to do so. If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment. In an extreme case, the conviction may be set aside. … The seriousness of the offending will usually not be relevant to the nature of the remedy. If however the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay.

10     Williams v R [2009] NZSC 41, [2009] 2 NZLR 750 at [18]. See also CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [32].

11     Emphasis in original, footnotes omitted.

[21]   Further, in Wilson v R, the Supreme Court discussed the principles that apply in cases involving undue delay. The Court there recorded:12

[40]      In relation to criminal proceedings, a stay may be granted where there is state misconduct that will:

(a)prejudice the fairness of a defendant’s trial (“the first category”); or

(b)undermine public confidence in the integrity of the judicial process if a trial is permitted to proceed (“the second category”).

[22]   In the present case, the delay was clearly lengthy and, given the lower-level seriousness of the offending, it could potentially be characterised as excessive. The period of 21 months that elapsed between Mr Butler’s first appearance in the District court and his trial being heard would have been frustrating and stressful for him as little progress appeared to be made in the proceeding. However, I do not consider the delay can be regarded as unjustifiable or egregious such as to form the basis of a stay. It is not apparent there has been any prosecutorial misconduct or prejudice to the fairness of Mr Butler’s trial as a result of the delay. Instead, the proceedings were slowed by a number of procedural matters, which included the making of a legal aid application, the withdrawal of counsel at one point and indeed on one occasion (but an isolated occasion) Mr Butler himself failing to appear. There was also at one point an application for transfer to this Court. In this context, I am satisfied that the delay was largely the consequence of institutional factors and for part of it, at least, the circumstances of the disruption occurring through the COVID-19 pandemic rather than any particular misconduct or unfairness on the part of the prosecution.13

[23]   Mr McClenaghan in his submissions referred to the decision of Bradshaw v Police and I accept it is apposite here.14 Bradshaw involved a 24-month delay between the offender being charged in June 2014 for assault charges and his trial commencing in June 2016. The Judge there noted a significant cause of the delay was that neither the prosecution nor the defence did what they could to ensure the proceedings were brought on for hearing at the earliest time possible.15 Nonetheless, it was held the

12     Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 (footnote omitted).

13     See Zhang v Auckland District Court [2012] NZHC 385.

14     Bradshaw v Police [2017] NZHC 346.

15 At [26].

delay was not so long or the reasons for it so unsatisfactory that the delay of itself justified a stay of prosecution.16 Neither was the Judge persuaded that the defendant had been prejudiced by the delay.17 The approach and outcome in Bradshaw tends to support the Judge’s decision in this case.

[24]   Importantly, I note that when it came to sentencing, the trial Judge also explicitly took into account the significance of delay in calculating the appropriate sentence:18

[27] As to the other two charges, I accept that this has taken some considerable time to come before the Court and it has been since October of 2018 and there have been numerous appearances on the matter and that you have also been on restrictive bail terms for all of that time. Those are factors which I am entitled and should take into account when considering any sentence that the Court should pass on you.

[25]   This approach is in accordance with what the Court in Williams determined to be the appropriate remedy where an accused is convicted after being on bail pending trial, as Mr Butler was here. After Mr Butler was granted bail (albeit on restrictive conditions) and was convicted (following a logical and justified assessment of the evidence by the trial Judge), he was sentenced to a non-custodial sentence (that is, 45 hours’ community work). I am not persuaded Mr Butler was prejudiced by the delay. This ground of appeal based on delay fails.

[26]   Mr Butler also submitted the police attempted to delay proceedings for a further period on 6 July 2020 by having the victim feign mental illness and by not calling the arresting officer, which meant that Mr Butler was unable to question him. I accept Mr McClenaghan’s submission that this aspect of the claim does not advance Mr Butler’s appeal. The Judge in fact refused an adjournment. Both the two victims gave their evidence on 6 July 2020 and it was open to Mr Butler to put questions regarding the arrest to the constable who was present.

16 At [34].

17 At [35].

18     Police v Butler, above n 1.

The Judge’s behaviour

[27]   Mr Butler also submitted that there were issues in relation to the Judge’s behaviour, he observing in his written notes that the Judge was “visibly irritated” at the delay and rushed the proceedings in a hasty manner, which he claims amounted to a breach of impartiality.

[28]   There is, I recognise, some difficulty for an appellate Court in evaluating the behaviour, attitude and pace of trial in considering an appeal. However, on my review of the notes of evidence, there does not appear to be any indication whatsoever of inappropriate or untoward conduct by the Judge. It appears, at least at the commencement of the day, that any expression of concern on the part of the Judge was more in relation to the conduct of the police prosecutor in seeking adjournment and the request for further delay of the proceeding than in relation to anything that would reflect on the defendant. As the trial proceeded, it is evident that the Judge was required to intervene on repeated occasions to ensure Mr Butler’s cross-examination and evidence observed the requirements of relevance and admissibility. The Judge assisted Mr Butler at times by explaining the rules of evidence and procedure with some repetition. The Judge also intervened a number of times when repetitive or inappropriate questions were put to prosecution witnesses. As Mr McClenaghan responsibly recognised, undertaking a hearing as a self-represented litigant is undoubtedly a difficult process. A litigant in such a situation may well gain the impression that the Judge is being unfair. A Judge in that situation, and I am satisfied on the notes of evidence the Judge in this case, must simply administer the requirements of the law. This was particularly evident here when Mr Butler sought to have the trial aborted following the evidence of the prosecution’s first witness, Mr Lawson.

[29]This ground also fails.

Refusal to allow a cross-claim ordered by Judge Sinclair

[30]   The situation relating to what Mr Butler referred to as the “cross claim ordered by Judge Sinclair” was less than clear at the start of the appeal. It became relatively

clear once Mr McClenaghan gave me the background of events from late 2019 through to the trial date.

[31]   Mr Butler had enquired whether the proceeding should be transferred to the High Court because of some of what he viewed as the legal issues involved. In February 2020, Mr Butler (still in the context of a possible transfer) sought a stay, indicating that he wished to call some 13 witnesses and, at that point, I understand Judge Sinclair invited Mr Butler to file a memorandum in that regard. Over the following months, the administration of the Court was affected by the COVID-19 crisis. In May 2020, the officer in charge of the case was tasked with arranging a Judge-alone trial date. The trial was allocated for 6 July 2020. On that date, Judge Bouchier proceeded with the trial in the absence of any formal application for stay.

[32]   In these circumstances I do not find any error of consequence in Mr Butler’s understanding that Judge Bouchier had refused to allow what Mr Butler referred to as the cross-claim ordered by Judge Sinclair.

[33]This ground of appeal must fail.

The Judge’s intervention in cross-examination

[34]   Mr Butler complains about the Judge’s intervention in his cross-examination of the prosecution witnesses and the Judge’s alleged assistance to those witnesses.

[35]   In particular, Mr Butler submits that the Judge restricted him from asking questions of Mr Lawson concerning a medical condition. Mr Butler sought to put to Mr Lawson that he (Mr Lawson) had been screaming in his room for about three days. Mr Butler wished to call a witness to corroborate that. He also wished to put to the witness that they had witnessed an ambulance turn up at the Lawsons’ property after such screaming episodes. This line of questioning prompted an objection from the police prosecutor and an intervention from the Judge. She sought to clarify and properly direct the questioning as it raised irrelevant issues regarding Mr Lawson’s mental health. The Judge had Mr Butler directly ask Mr Lawson if he recalled screaming, to which he answered “no”. The ambulance question followed and the Judge directed Mr Butler to move on with his examination. Mr Butler then moved on

but later sought to ask a question about Mr Lawson’s mental health, which the Judge again disallowed as neither logical nor fair.

[36]   I accept Mr McClenaghan’s submission that the Judge did not err in intervening in order to focus the scope of Mr Butler’s questioning and in ultimately disallowing the line of questioning in relation to Mr Lawson’s mental health. The Judge acted in accordance with ss 7 and 8 of the Evidence Act 2006 in finding questions regarding Mr Lawson’s previous episodes of illness irrelevant to the allegations at issue.

[37]   Mr Butler submits that the Judge “coached” Mr Lawson by “answering some of [Mr Lawson’s] answers for him” and allowing him ten minutes to re-read his statement. The notes of evidence reveal that the Judge sought to assist in clarifying questions and on numerous occasions did intervene to inform Mr Butler he was repeating a question previously asked. As to the complaint she had allowed the witness to refresh his memory, the prosecuting officer in fact followed the correct procedure under s 90 of the Evidence Act. Leave was granted by the Judge in accordance with that section. The notes of evidence indicate that Mr Lawson took less than 10 minutes to refresh his memory. In any event, there is no specific time limit that can be set in relation to refreshing of memory from statements. Had the process taken excessive time, the Judge was well-placed to intervene, but she did not.

[38]   Mr Butler asserts the Judge allowed the prosecution’s second witness, Mrs Lawson, to “claim to have no memory” of key parts of her statement. A review of the notes of evidence shows there were numerous occasions when Mrs Lawson indicated that she was not sure or did not know the answer. Those responses relate, as the respondent identifies, largely to peripheral matters and matters on which Mrs Lawson may genuinely have been unable to answer. The Judge was well-positioned to make credibility and reliability findings on Mrs Lawson’s evidence and lack of recall. No error has been demonstrated in her Honour’s assessment of credibility and veracity.

[39]This ground of appeal must fail.

Conclusion

[40]    Judge Bouchier was entitled to accept the evidence of Mr Lawson and his mother. She was entitled to find the prosecution had properly negated self-defence and had proven the charges beyond reasonable doubt. The extent to which key aspects of charges were effectively corroborated by Mr Butler himself went some way to assisting the Judge’s deliberations. The Judge’s decision was detailed and logical having regard to the evidence, which included the evidence of Mr and Mrs Lawson, Mr Butler’s police interview, Mr Butler’s evidence at trial, and photographs of Mr Lawson’s leg injury and the damage to the fence. It cannot be said that the Judge in any way erred in her assessment of the evidence, let alone to such an extent that a miscarriage of justice occurred.

Orders

[41]The orders I therefore make are these:

(a)I grant leave to the appellant to bring this appeal; and

(b)the appeal is dismissed.

Osborne J

Solicitors:

Crown Solicitor, Christchurch Copy to: Mr J W T Butler