Butler v Police

[2015] NZHC 2577

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000118 [2015] NZHC 2577

BETWEEN

JESSIE BUTLER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	5 October 2015
Appearances:	Appellant in Person Glyn Hughes for the Respondent
Judgment:	20 October 2015

JUDGMENT OF MOORE J [Appeal against conviction and sentence]

This judgment was delivered by me on 20 October 2015 at 3:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

BUTLER v NEW ZEALAND POLICE [2015] NZHC 2577 [20 October 2015]

Introduction

[1]      On 12 January 2015, following a Judge-alone trial before Judge P Sinclair in the District Court at North Shore, Jessie Butler1  was convicted of common assault2 and threatening to kill.3

[2]      Mr Butler chose to represent himself in the District Court.  He also appeared on his own behalf in this Court.

[3]      The charges arose in the immediate aftermath of Mr Butler being served with a trespass notice.  Her Honour accepted the complainant’s evidence that Mr Butler attempted to punch the complainant who dodged the blow and then hit Mr Butler knocking him to the ground where he was restrained until the Police arrived.  During the restraint Mr Butler deliberately spat on the complainant’s face.

[4]      Her Honour accepted the complainant’s evidence and found the charge of assault proved.  In relation to the threatening to kill her Honour noted that Mr Butler acknowledged he had made the threats but that he did so because he believed the complainant was trying to kill him.  Her Honour rejected Mr Butler’s account and found this charge proved also.

[5]      Having been convicted, Mr Butler was sentenced to 100 hours’ community service and nine months’ supervision.

[6]      Mr Butler now appeals his convictions and sentence on various grounds.

Factual and procedural background

[7]      The  complainant  in  this  matter,  Mr  Blair,  was  employed  by  Massey

University at its Albany Campus.  He was Director of Campus Security, a role which he had held for 15 years since leaving the Police.

1      In evidence Mr Butler said his full name was Jessie Waiariki Tamanava Butler.

2      Summary Offences Act 1981, s 9:   maximum penalty six months’ imprisonment or fine of

$4,000.

3      Crimes Act 1961, s 306: maximum penalty seven years’ imprisonment.

[8]      On 17 February 2014, Mr Blair was instructed by his employer to serve a trespass notice on Mr Butler.  It appears that during the day Mr Butler had directed some threats towards university staff at the campus medical centre.  Mr Blair had not previously dealt with Mr Butler.  He was given Mr Butler’s name, description and home  address.    From  those  details  he  prepared  the  trespass  notice.    Later  that evening he went to Mr Butler’s address in Browns Bay and knocked on the door.  It was answered by someone who did not fit Mr Butler’s description.  At about this time a car sped down the driveway and slid to a halt.  It was Mr Butler.  He got out of the car and walked towards Mr Blair who he handed him the trespass notice and said:

“Jessie, you know what this is about.”

[9]      Mr  Blair  said  that  initially Mr  Butler  appeared  calm  but  his  demeanour quickly changed.  He became very aggressive, swearing at Mr Blair and telling him to get off his property.  In evidence, Mr Blair described Mr Butler as “enraged” and “very aggressive”.

[10]     According to Mr Blair, having been told to leave, he turned and walked up the  driveway.    Mr  Blair  noticed  that  Mr  Butler  was  following  him  carrying something in his right hand.  He again swore at Mr Blair and asked him which car was his.  Mr Blair said he did not answer.  At this point, Mr Butler threw something

over the back of a car which was parked nearby.  It appears it was paint.4   Mr Butler

then started to attack the car, kicking a rear panel.

[11]     As  Mr  Blair  backed  away from  the  car he telephoned  111  and  told  the emergency services that he had just served a trespass notice and that the person he had served was causing damage to a car.

[12]     According to Mr Blair, Mr Butler said to him:

“I’m going to fucking kill you. Who are you calling?”

4      The evidence on this is unclear.  Mr Blair believed it was paint.  Mr Butler initially said it was polish but later in his evidence said it was paint.

[13]     Mr Blair said he told Mr Butler to calm down and to back off.  Mr Blair said Mr Butler told him that he had a knife, that he belonged to Black Power and repeated that he was going to kill him.

[14]     According to Mr Blair, Mr Butler approached to face him and then swung a punch using his right first.   Mr Blair stepped into the punch, ducked and then hit Mr Butler once to the left side of his face.  He said he did this because, but for that pre-emptive action, he would have been hit.  He said he was also conscious of what Mr Butler had said about having a knife.

[15]     After the punch Mr Butler fell to the ground.  Mr Blair held onto his wrists because, he said, he had concerns about the possibility Mr Butler was armed.  The two struggled for several minutes and at one point, while Mr Blair had Mr Butler pinned to the ground on his back, Mr Butler deliberately spat at him.  He did this three times.   The  spittle landed  on  his  face,  mouth  and  eyes.   Throughout  the struggle, Mr Blair claimed that Mr Butler said that he was going to kill him and his family and was going to find out where his family lived.  Mr Blair said he took the threats as credible and hoped the Police would turn up shortly.  As they struggled Mr Blair said  he told  Mr Butler  that  if  he calmed  down he would  let  him  go. Mr Butler continued to struggle, swear and threaten.

[16]     After what Mr Blair believed was about 10 to 15 minutes the Police arrived. In the meantime Mr Butler had calmed a little.  Mr Blair released him and Mr Butler walked a short distance away.

[17]     Both attending Police sergeants said they arrived to find an agitated and aggressive Mr Butler standing on the footpath shouting.   He was directing threats towards Mr Blair.  He shouted that he was Black Power and he was going to kill him. Mr Butler’s threats were described by the Police as constant and non-stop.  Having spoken to Mr Blair, who was described as very calm but shaken, Mr Butler was arrested.  According to Sergeant Turner, who had arrested Mr Butler, said Mr Butler continued his threats but then began to direct them towards the sergeant, threatening to kill him and his “pig family”.  Because of his conduct, the officer said he did not give him his rights under the New Zealand Bill of Rights Act 1991 (“NZBORA”)

immediately.  He was taken in a Police car to the nearby North Shore Policing Centre where arrangements were made to transport him to the Henderson Police Station. According to Sergeant Turner, Mr Butler’s aggressive conduct continued after their arrival until the sergeant mentioned that he had been in the military.  That advice, according  to  the  sergeant,  had  an  immediate  tranquilising  effect  on  Mr  Butler. Mr Butler instantly calmed down.  He became polite and co-operative.  His highly aggressive  demeanour  switched.    He  metamorphosed.    He  adopted  a  friendly approach towards Sergeant Turner who he thereafter called, “Sarge”.  It seems the reason for this was that Mr Butler himself had been in the armed services.   This abrupt change in mood continued throughout the balance of Sergeant Turner’s dealings with Mr Butler.

[18]     At the North Shore Policing Centre according to Sergeant Turner, Mr Butler mentioned:

“Oh, you never read me my Bill of Rights, Bro.”

[19]     The sergeant said he replied saying he would do that now and record it in his notebook which he did.

[20]     They  then  drove  to  the  Henderson  Police  Station  for  Mr  Butler  to  be processed.  As the sergeant handed Mr Butler over he shook the sergeant’s hand and said something like:

“Take care Sarge; God bless.”

[21]     Mr Butler gave evidence.  His account was somewhat different.

[22]     He said that when he arrived at his home that evening Mr Blair was already at the address.  Mr Blair said he was from Massey University and he was there to serve a trespass notice which he handed over.   Mr Butler said that he smelt something metallic, presumably on the breath of Mr Blair.   He described it as “not so much meth but the steroid smell”.  He claimed he thought Mr Blair was a drug addict and said he ran up the drive saying:

“Get out of here … junkie.”

[23]     He said that when they got to the top of the driveway Mr Blair started to shadow box.  He asked Mr Blair where his car was.  He said Mr Blair pointed to a nearby car.   So Mr Butler threw what he said he believed was polish, rather than paint, at the car.

[24]     It was at that point he claimed Mr Blair punched him and then put him in a choke hold.  He said he thought he lost consciousness and when he tried to get up Mr Blair jumped on him again.  Finally, he got Mr Blair off him and walked away. He said that Mr Blair nearly killed him; his wind pipe blew up, he had severe concussion for about four days, he had cracked teeth and injured his shoulder and his knee.  He accepted he spat at Mr Blair but did not know where it went.

[25]     He described the Police arriving.   He said he pointed out Mr Blair as the aggressor.  He was handcuffed and put in the Police car.  He said he was taken to a Police station and put in a cell.  He said he told the Police that they had not read him his rights.

[26]     After he was released, he said he went home and two days later filed a civil claim   in   “malfeasance”   in   this   Court   against   Massey   University   and   the New Zealand Police.

[27]     He said he was not carrying a knife and while he accepted that he threatened to kill Mr Blair and spat at him he said this only happened after Mr Blair had tried to kill him.

[28]     He also accepted that once he knew Sergeant Turner had been in the army he

changed his attitude.  He described the sergeant as “a brother”.

District Court decision

[29]     Judge Sinclair, in a detailed and comprehensive judgment, summarised the evidence of each witness including the evidence of Mr Butler.

[30]     After setting out the evidence which was not in dispute her Honour dealt with the charge of assault.   She concluded that she preferred the evidence of Mr Blair

because he did not appear to have any emotional involvement or attachment in respect of the trespass notice and was simply attending to his duties as the Director of Campus Security in serving the trespass notice.   She commented that it was apparent from Mr Blair’s evidence, as well as Mr Butler’s, that having served the trespass notice, Mr Blair left the address.  He was followed by Mr Butler to the top of  the  driveway.    The  Judge  inferred  this  was  for  the  purpose  of  Mr  Butler confronting Mr Blair.

[31]     Her Honour also referred to the uncontested evidence that Mr Butler asked Mr Blair which car belonged to him.   Whether Mr Blair answered or not, it was common ground that Mr Butler threw either paint or polish on the car.  His attack on the car indicated, the Judge said, a desire to damage Mr Blair’s property and thus reflected Mr Butler’s state of mind and his view of Mr Blair.

[32]     This animus, her Honour concluded, was consistent with Mr Blair’s evidence it was Mr Butler who first swung a punch at him.  In the circumstances her Honour was satisfied it was Mr Butler attempted to strike Mr Blair.

[33]     It would appear that for the same reasons her Honour concluded Mr Blair’s description  of  Mr  Butler  spitting  at  him  was  what  happened  and  that  it  was deliberate.

[34]     This conclusion, her Honour noted, derived from the evidence of Mr Blair and, to a certain extent, Mr Butler that at the time Mr Butler spat at Mr Blair he was agitated, angry and throwing threats, expletives and abuse towards Mr Blair.   She found the evidence of Mr Blair was to be preferred and thus the charge of assault proved.

[35]     In relation to the charge of threatening to kill her Honour correctly directed herself on the legal elements the prosecution was required to prove.   Her Honour concluded that this charge, too, was proved to the required standard.

[36]     First, Mr Butler acknowledged in evidence that he threatened to kill Mr Blair when the latter was holding him down.   She did not accept that the threats were

made because Mr Butler believed Mr Blair was trying to kill him.  She noted it was possible self defence could be raised in relation to that charge but did not accept that Mr Butler was acting in self defence.

[37]     Her Honour, for the same reasons she listed in relation to the previous charge, concluded that she preferred the evidence of Mr Blair who she noted struck her as a straightforward, frank witness who did not overstate or embellish his evidence. Furthermore, her Honour found aspects of Mr Butler’s evidence to be hyperbolic. His claim that he was beaten to a pulp and nearly murdered by Mr Blair was not supported by any other evidence.   Furthermore, although Mr Butler complained to the Police that he had a sore shoulder, there was no evidence of the other injuries he claimed he had suffered which would have supported his account.

[38]     Furthermore,  the  evidence  that  Mr  Butler  repeatedly  threatened  to  kill Mr Blair was supported by the two officers who arrived at the scene.  The evidence given by Mr Blair and the two officers was consistent with the nature and content of Mr Blair’s account of the threats directed towards him by Mr Butler.  These included multiple threats to kill Mr Blair, finding Mr Blair’s family and killing them and references  to  Black  Power.    Following  Mr  Butler’s  arrest,  a  similar  tirade  was directed to the Police, a matter which her Honour found supportive of Mr Butler’s claims.

[39]     Her Honour determined  that Mr Butler intended that the threat be taken seriously by Mr Blair and while it was apparent that Mr Butler was not carrying a knife, her Honour was satisfied that Mr Butler had told Mr Blair he had a knife. This, in combination with Mr Butler’s abusive demeanour, his following of Mr Blair up the driveway, the damaging of the car, the attempted punch of Mr Blair followed by the spitting, lead her Honour to conclude that the threats made by Mr Butler were intended by him to be taken seriously by Mr Blair.

[40]     On the question of NZBORA advice, her Honour indicated she was satisfied from all of the evidence that by reason of Mr Butler’s extreme conduct following his arrest it was not practically possible for the officer to give Mr Butler his rights.  She was satisfied, however, that he was given his rights once he had calmed down.

[41]     For those reasons her Honour concluded that both charges had been proved to the necessary standard.

[42]     Having been convicted Mr Butler appeared for sentence before her Honour on 5 May 2015.

[43]     The Judge’s sentencing notes record that sentencing was adjourned in order for Mr Butler to attend a restorative justice conference.   Her Honour noted that Mr Butler was receptive to undertaking restorative justice but for reasons which were unclear, no conference had taken place.  Her Honour recorded that Mr Butler wished to have the matter finalised and so the sentencing proceeded.

[44]     Her Honour noted that Mr Butler had no previous convictions for this type of offending and that he was entitled to some credit for his previous good conduct. While noting that the circumstances of the offending made it “a most distasteful assault” she acknowledged it could not be placed at the higher end of the criminal spectrum.

[45]     Bearing in mind the totality of the offending her Honour sentenced Mr Butler to 100 hours’ community work and nine months’ supervision on the conditions that he attend and complete a violent prevention course and such other treatment or counselling as directed.

Approach to appeal

[46]     Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction.  Under s 230 of that Act, this is a first appeal from a Judge alone trial.

[47]     Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court 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”:

“232    First appeal court to determine appeal

(1)       A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)       The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a)       in  the  case  of  a  jury  trial,  having  regard  to  the evidence, the jury's verdict was unreasonable; or

(b)       in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)       in any case, a miscarriage of justice has occurred for any reason.

(3)       The first appeal court must dismiss a first appeal under this subpart in any other case.

(4)       In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)       has created a real risk that the outcome of the trial was affected; or

(b)       has resulted in an unfair trial or a trial that was a nullity.

(5)       In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.”

[48]     As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.5 The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b).

[49]     A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”6 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there

is a real possibility the verdict would be unsafe.7

5      “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18 at [30].

6      R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.

7 At [110].

[50]     An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.8  Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court must quash the decision.9  Courts have held that an unfair trial can also exist when a defect in the trial causes an unacceptable appearance of unfairness without actual prejudice to the defendant.10

[51]     Unfairness does not necessarily give rise to a nullity;11 there has to be some fundamental procedural error. Examples of such a fundamental error include: a conviction where a court lacks jurisdiction,12 or the charge fails to disclose a criminal offence.13

Sentence

[52]     Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

In any other case, the Court must dismiss the appeal.14

[53]     The  Court  of Appeal  in  Tutakangahau  v  R  has  recently  confirmed  that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957.15  Further, despite s 250 making no express

8      Condon v R [2006] NZSC 62 at [78].

9      Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the

Supreme Court in Condon v R, above n 4, at [38].

10     See James v R [2011] NZCA 219, at [29], where the failure to address the juror’s capacity meant that there was a risk of a miscarriage of justice even though the verdict would have stood if the juror had been discharged.

11     Jago v The District Court of New South Wales (1989) 168 CLR 23 (HCA) at 57 per Deane J,

cited by the Supreme Court in Condon v R, above n 4, at [77].

12     R v O (No 2) [1999] 1 NZLR 326 (CA).

13     R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338.

14     Criminal Procedure Act 2011, s 250(3).

15     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s

approach to sentence appeals.16

[54]     The approach taken under the former Summary Proceedings Act was set out in R v Shipton:17

(a)      There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[55]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.18

Grounds of appeal

[56]     In his notice of appeal Mr Butler raises eight grounds which he claims lead him to receive an unfair trial. These are listed below:

(a)      differing versions of events given by the two Police officers as to whether Mr Butler was informed of his rights under NZBORA;

(b)      “adverse infringement” on the part of the Public Defence Service

which he alleges prevented him from having legal representation;

(c)      the  late  night  appearance  of  Mr  Blair  with  an  incorrectly written trespass notice after Mr Butler had threatened legal action;

16     At [33], [35].

17     R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

18     Ripia v R [2011] NZCA 101 at [15].

(d)      the “duress” placed on Mr Butler by the actions of Mr Blair;

(e)       that his violence and threats were made in response to being placed in a choke-hold;

(f)       that he was not armed with a knife; and

(g)      that he left without throwing a punch.

Analysis

[57]     Mr Butler admits the actus reus of both charges.  He admits he threatened to kill Mr Blair and that he spat at him.  However, he does not accept he attempted to punch Mr Blair.   While he raises various concerns over his treatment both by the Police and in the District Court he does not claim that any of these issues, either individually or collectively, establish a miscarriage in the sense that there is a real possibility the verdict would be unsafe.   Before dealing with each of Mr Butler’s complaints, it is necessary to review the Judge’s approach to the assessment of the credibility of the two principal witnesses, Mr Blair and Mr Butler.

[58]     Her Honour determined that she preferred the evidence of Mr Blair over that of Mr Butler.   In doing so she explained her reasoning by reference to various aspects of the evidence.   She noted that she took into account that Mr Blair in serving  the trespass  notice was  undertaking a  role which  he  had  performed on numerous previous occasions.  He was simply doing his job.  In relation to this issue I also note that Mr Butler was not known to Mr Blair before the events of the evening of 17 February 2014.  Her Honour noted that it was Mr Butler who followed Mr Blair up the driveway.  It was Mr Butler who told Mr Blair to leave; his language was  abusive.    It  was  Mr  Butler  who  damaged  the  car  which  he  believed  was Mr Blair’s.   Some of the tirade of abuse was observed by the Police when they arrived at the scene.  The sergeants witnessed the abuse being directed at Mr Blair by Mr Butler.   Furthermore, the language witnessed by the sergeants was consistent with Mr Blair’s account of what had been said to him.  And when Sergeant Turner became the target of Mr Butler’s tirade the nature of the threats and the language

used was consistent with Mr Blair’s account of what Mr Butler had said to him earlier.

[59]     I shall now deal with each of Mr Butler’s complaints in the same order in

which they are listed in his notice of appeal.

(a)      Differing Police accounts

[60]     Mr Butler claims that Sergeant Turner lied when he said he had informed Mr Butler about the charges or read him his rights at the point of handcuffing. Furthermore, he points out that Sergeant Sagar said he could not recall Sergeant Turner informing Mr Butler of his rights despite standing right next to him when he was arrested and handcuffed at the scene.

[61]     Judge Sinclair took into account the evidence of Sergeants Turner and Sagar. Her Honour noted that Sergeant Turner was unable to give Mr Butler his NZBORA rights immediately because of his agitated state.  He gave Mr Butler his rights once he calmed down.  Her Honour noted that Sergeant Sagar did not recall whether he heard Sergeant Turner give Mr Butler his NZBORA rights.

[62]     The evidence from Sergeant Turner was that every time he tried to talk to Mr Butler  he  responded  with  a  volley  of  abuse  and  threats.    Mr  Butler  was handcuffed at the scene and was placed in the Police car within a very short time afterwards.  The sergeant said that Mr Butler was uttering non-stop threats towards the officer and his family and that he was unable to converse with him.  Once seated inside the Police car, even with the windows shut he was still clearly audible.  The sergeant explained that Mr Butler was not given his NZBORA rights despite trying to speak with Mr Butler several times.  The officer commented that in 10 or 11 years with the Police Mr Butler’s threats and conduct were the most obnoxious and outrageous he had witnessed.

[63]     Once Mr Butler calmed down at the North Shore Policing Centre, it was Mr Butler who mentioned that his NZBORA rights had not been read to him, which lead the officer to give the rights and record that fact in his notebook.  The evidence

is that at this time, Sergeant Sagar was making arrangements to transport Mr Butler to the Henderson Police Station.

[64]     Mr Butler cross-examined Sergeant Sagar who confirmed that at the time Mr Butler was arrested at the scene he did not hear Sergeant Turner give him his NZBORA rights.  This is unsurprising given Sergeant Turner’s evidence that it was not until after they arrived at the Police station was it that he first gave Mr Butler his NZBORA rights.  Furthermore, given that Sergeant Sagar was occupied organising Mr Butler’s transport to the Henderson Police Station, it is hardly surprising he did not hear Sergeant Turner giving Mr Butler his NZBORA rights.

[65]     The purpose of giving a detained person their rights under s 23 of NZBORA is so that they are made aware of and can understand their rights and thus be in a position to exercise them if they wish.  Generally a person should be informed of his rights immediately, but in some circumstances delay will be justified, provided that

the person’s rights are not irretrievably jeopardised.19    This is particularly pertinent

in cases, such as the present, where it is the person’s own actions that make it impossible for him to be informed of his rights.  I consider this case analogous to the situation in Rodger v Police, where Temm J observed:20

“where the person under detention or arrest was fighting drunk and [has] to be forcibly overpowered and arrested, it is unreasonable to expect a [constable] to be shouting at the suspect what his rights are while trying to make the arrest.”

[66]     In the circumstances which faced Sergeant Turner at the scene and given Mr Butler’s conduct it would have been an exercise in futility for the sergeant to advise Mr Butler of his NZBORA rights in such a way that they would have been understood by him and for him to make a decision as to whether or not to exercise them.

[67]     Furthermore, it is plain that in any event Mr Butler knew his NZBORA rights because at the Police station he reminded the sergeant they had not been given.

Sergeant Turner then gave Mr Butler his rights and recorded he had done so.  There

19     Barr v Minister of Transport (1992) 8 CRNZ 626 (HC), although compare Keni v Police (1992)

9 CRNZ 374, at 381.

20     Rodger v Police HC Auckland AP192/92, 5 November 1992.

is also no suggestion that he was prejudiced by the failure to advise him of his rights at an earlier stage.

(b)      Breach of right to legal representation

[68]     Mr Butler claims he was prevented from having proper representation at his trial.   Indeed, he goes so far as to submit he was prevented from obtaining legal representation through the actions of his four former lawyers.  However, on closer examination it seems the first two lawyers approached to represent Mr Butler were unable to act due to conflicts of interest.   Mr Butler claims that the third lawyer, having been sent the relevant papers, failed to correspond with Mr Butler.   The fourth lawyer was, according to Mr Butler, “sacked” because she “compelled him to plead guilty without considering his defence.”  The Court record indicates that the fourth lawyer sought leave to withdraw with Mr Butler’s approval.

[69]     Even if Mr Butler’s claims are correct, they do not amount to an effective denial of legal representation.   And even if he had been effectively denied legal representation prior to his trial any prejudice was cured by his confirmation at the beginning of the trial that he elected to proceed without a lawyer.  This is expressly

covered in the Judge’s decision:21

“[3]      Mr Butler chose to represent himself.  At the commencement of the Judge-alone trial I asked Mr Butler whether he wished to retain the services of a lawyer or represent himself.  Mr Butler acknowledged he had counsel in the past, but that counsel had sought leave to withdraw and he agreed with this  course  of  action.    Mr  Butler  made  it  very  clear  that  he  wished  to represent him at the Judge-alone trial.”

[70]     Furthermore, it is plain from the comments contained in the Judge’s decision as well as from the trial transcript that she took considerable care to ensure Mr Butler was able to present his defence effectively and was not prejudiced because of his lack of legal representation.  Her Honour described her position in this way:

“[5]      I took the unorthodox approach of asking Mr Butler to explain his view of the incident so that I could assist him and ensuring that he had put his version to Mr Blair. The prosecutor did not oppose this course.”

[71]     A similar situation arose at the sentencing where her Honour said:22

“[2]      You are self  represented.   I have explained to you that you are entitled to have counsel representing you.   The duty solicitor has kindly stepped in this morning to assist, but you have indicated to him that, if the Court is minded to follow the recommendation, you do not require representation.”

[72]     Even on this appeal Mr Butler has elected to act for himself.  It is plain he has made an informed and conscious decision to do so.   I am satisfied he was not materially disadvantaged by his lack of representation.

[73]     For these reasons this ground must fail.

(c)      The incorrectly written trespass notice

[74]     It appears that Mr Butler’s name was incorrectly recorded on the trespass notice by the inclusion of the name “Bertrand”.  It also seems that there may have been an error in the address although evidently not so as to have caused Mr Blair to go to the wrong house.   However, for the reasons noted by Judge Sinclair the correctness or otherwise of the trespass notice was not material to the proof of the charges or Mr Butler’s defence.   He did not claim that the errors in the trespass notice in any way contributed to what happened after Mr Blair handed the notice to him.   None of the charges relates to the trespass notice or its authenticity.   The relevance of the trespass notice to the hearing was simply to provide the background narrative. This ground must also fail.

(d)      Duress

[75]     Mr Butler claims that “duress” was placed on him by the actions of Mr Blair. It is not apparent from the supporting written material or any of Mr Butler’s oral submissions on appeal what is meant by this ground nor is it possible to infer what this ground relies on. Accordingly, it must fail.

(e)      That the violence of threats made by Mr Butler were made in response to being placed in a choke hold

[76]     For the purposes of this appeal I shall assume that this ground relates to a claim of self defence and that the Judge’s rejection of self defence was unreasonable having regard to the evidence.  The defence of self defence allows a person to use force to prevent being harmed.23   This can include both actual force or the threat of force as required by the circumstances.24

[77]     In considering the charge of assault her Honour did not expressly consider whether Mr Butler may have been acting in self defence when he attempted to strike Mr Butler or when  he  spat  at  him.25      Having decided she preferred  Mr Blair’s account over Mr Butler’s it was inevitable any claim Mr Butler was acting in self defence must fail.  On Mr Blair’s evidence the attempt by Mr Butler to punch him was an act of aggression.  It cannot be justified by a claim of self defence.

[78]     This conclusion is reinforced by the circumstances as her Honour found them to be.   Mr Blair was moving away.   Mr Butler followed him.   He attacked a car which he believed belonged to Mr Blair.  He was abusing and threatening Mr Blair. The attempt to punch Mr Blair then followed.  On the evidence the circumstances were such it cannot be inferred Mr Butler believed he was justified in defending himself.  Mr Blair did not pose any threat.

[79]     The position in relation to the spitting is somewhat different.  By this point in the altercation it is commonly accepted that Mr Blair had hit Mr Butler and was restraining him on the ground.  Despite this restraint Mr Butler continued to abuse Mr Blair in the same way he had been throughout.  He continued to tell Mr Blair he was going to kill him, kill his family and he was going to find out where his family lived.    The  act  of  spitting  accompanied  these  threats.    Furthermore,  Mr Blair’s evidence was that he told Mr Butler that if he calmed down he would let him go to

which Mr Butler apparently responded:

23     Crimes Act 1961, s 48.

24     R v Terewi (1985) 1 CRNZ 623 (CA); R v Hills (1999) 16 CRNZ 673 (CA) at 676.

25     Her Honour did consider whether self defence might have been available on the threatening to kill charge.   While not forming a concluded view of whether the defence could have been available for the charge, she rejected the defence on the facts.

“No, I’m going to kill you.”

[80]     While  Mr  Butler’s  actions  at  this  stage  may  have  been  a  response  to Mr Blair’s actions, I do not accept that they amount to self-defence.   It is obvious that not all retaliations will be justified by this defence and at no stage in the course of the evidence did Mr Butler attempt to justify his act of spitting in Mr Blair’s face as actions undertaken in defence of himself.

[81]     I am satisfied that when the evidence is viewed in its totality there is no credible factual narrative which would support a defence of self defence either in respect of the attempted punch or the spitting in Mr Blair’s face (f) Mr   Butler   was not armed with a knife

[82]     There was no finding by Judge Sinclair that Mr Butler possessed a knife.  No doubt this was for two reasons.   First, there was no evidence to support such a finding.   Secondly, on the facts of the case such a finding was unnecessary.   The relevance to possessing a knife went to the issue of Mr Butler’s conduct and an assessment of who the aggressor was.   It is was this factor, in combination with Mr Butler’s  abusive  demeanour,  his  following  of  Mr Blair  up  the  driveway,  the damaging of the car and his other aggressive and confrontational conduct which lead the Judge to conclude that Mr Butler’s threats were intended by him to be taken seriously by Mr Blair.   That is the issue which her Honour, correctly in my view, determined was relevant.

(g)      Mr Butler left without throwing a punch

[83]     This  is  a  factual  issue.    The  Judge  accepted  Mr  Blair’s  evidence  that Mr Butler threw the first punch and it was in response to that attempt which lead Mr Blair to hit Mr Butler and restrain him until the Police arrived.   Her Honour carefully analysed the respective accounts given by all of the witnesses in coming to her assessment of credibility.

[84]     On this basis, I am satisfied there is ample evidence on which the Judge could properly  conclude  that  Mr  Blair’s  evidence  was  to  be  preferred  over  that  of Mr Butler.

Other matters

[85]     Mr Butler, in addition to the specific grounds referred to above, also raises other matters which were not specified in his grounds but which he submits lead to unfairness. These are set out below.

[86]     First, Mr Butler complains of the delay.  He points to delays from the time he was charged until his trial.   He also points to the four month delay between his conviction and sentencing.

[87]     The right to be free from undue delay is protected by s 25(b) of NZBORA. Whether there is been undue delay in a particular case is a function of time, cause and  circumstance:26      “Undue” in  this  context  is  synonymous  with  unjustifiable. Excessive delay does not necessarily mean there is undue delay.

[88]     In  the  present  case,  Mr  Butler’s  case  took  approximately  15  months  to proceed from his first appearance until sentencing.  Some of the delay between the entry of his not guilty plea and his trial was caused by his failures to appear at Court on 2 May, 19 May and 25 June 2014.  Additionally, on 2 October 2014, when the trial  was  scheduled  to  proceed,  the  matter  had  to  be  adjourned  because,  in Mr Butler’s words, he had “fired” his lawyer.

[89]     The four month delay between his conviction and sentence was explained by the sentencing Judge.   It was hoped to convene a restorative justice meeting. Ultimately these attempts proved to be futile.

[90]     Thus, while there may have been some delay it cannot be classed as undue delay and certainly,  at least in part, some of the delay appears to have been a consequence of Mr Butler’s own actions.  Furthermore, Mr Butler has not pointed to any adverse or prejudicial effect or consequence.

[91]     Mr  Butler  also  complains  there  were  inconsistencies  between  the  Police

officers’  statements  and  their  oral  evidence;  that  Mr  Butler’s  actions  were

26     Williams v R [2009] NZSC 41, [2009] 2 NZLR 750 at [12].

exaggerated by the witnesses and that he was treated unfairly following his arrest and during the trial process.

[92]     I do not find that any of these criticisms are justified.  While Mr Butler is correct there were some inconsistencies between the written statements of the Police and their oral evidence I am satisfied that none of these lead to a miscarriage of justice.    More significantly, cross-examination is the mechanism by which inconsistencies of this sort are identified and explored.  Mr Butler does not appear to claim he was unaware of the fact of these inconsistencies at the time the officers gave their evidence at his trial.  Indeed, from the voluminous material presented by Mr Butler at his appeal, the highlighted and annotated copies of the officers’ job sheets suggest that not only did he have copies of the officers’ previous statements but he was aware of any contradictions.  Furthermore, it has not been suggested that any of those contradictions were material either in an assessment of credit or in relation to any material fact or facts.

Conclusion

[93]     For  these  reasons  I  am  satisfied  that  each  of  the  grounds  advanced  by

Mr Butler must fail.  It follows that the appeal against conviction must be dismissed.

Appeal against sentence

[94]     Mr Butler has not advanced any argument in support of his sentence appeal. The  sentence  of  100  hours’ community  work  and  nine  months’ supervision  is unquestionably within the range available to the sentencing Judge.

[95]     I accept  Mr Hughes’ submission  that  aside  from  the lack  of a domestic violence element, the present case is similar to Taylor v Police.27   That case involved a mild to moderate domestic assault coupled with threats to kill.  Eighteen months’ imprisonment was held to be an appropriate starting point.  While the initial assault in this case was less serious than that in Taylor, spitting into the face, mouth and eyes of Mr Blair, the nature and extent of the numerous threats to kill both Mr Blair and

his family and Mr Butler’s apparent ability to give effect to his threats including his

27     Taylor v Police [2014] NZHC 1139.

references to having a knife and his claimed connections to well-known criminal gangs, elevates this offending and its seriousness. A starting point of several months’ imprisonment would have been entirely appropriate.

[96]     Any  suggestion  that  the  Judge  did  not  follow  the  methodology  used  in Hessell v R28  needs to be viewed in context.   Her Honour placed the offending at “the lower end of the spectrum”.  Her Honour then considered discounts for previous good character and being receptive to restorative justice.

[97]     Viewed in its totality, this analysis lead to an end sentence which was clearly well within the available range.  Indeed, it might properly to be described as lenient.

Conclusion

[98]     I am satisfied that no miscarriage of justice has occurred.  Furthermore, I am satisfied there was no error in the sentence imposed and it was well within the available range in the circumstances.

Result

[99]     The appeals against conviction and sentence are dismissed.

Moore J

Solicitors:
Crown Solicitor, Auckland

Copy to:

The Appellant

28     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.