Colman v Attorney-General

[2012] NZHC 2208

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2011-488-723
CIV 2011-488-724
CIV 2011-488-726

CIV 2011-488-727 [2012] NZHC 2208

BETWEEN  JOHN COLMAN Appellant

ANDATTORNEY GENERAL Respondent

Hearing:         24 July 2012

Appearances: Appellant in person

R J Hoare for Respondent

Judgment:      30 August 2012

JUDGMENT OF KEANE J

This judgment was delivered by  on 30 August 2012 at 9.30am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Law Office, Wellington

JOHN COLMAN V ATTORNEY GENERAL HC WHA CIV 2011-488-723 [30 August 2012]

[1]      John Colman seeks leave to appeal to the Court of Appeal Lang J's decision, dated 14 June 2012, upholding almost entirely a decision given in the District Court on 10 October 2011, striking out all but one of nine claims Mr Colman has brought against the Attorney-General alleging NZBORA rights abuses.

[2]      Mr Colman contends that a grant of leave is warranted because, as a result of Lang J's decision, he is  now denied redress for several serious breaches of his NZBORA rights, first by the police and more recently by the Courts. He contends that the Judge made as many as 39 errors of fact or law. He has abstracted six as of especial significance.

[3]      Lang J, Mr Colman contends most basically, did not decide his sole issue on the appeal, whether the Judge at first instance had wrongly struck out his civil claims as collateral attacks on decisions given in the criminal jurisdiction. Lang J decided them on a basis never argued, that the breaches contended for were not seriously arguable.

[4]      Thus, Mr Colman contends, his appeal was not heard and resolved on its merits. It was not heard at all. To obtain a genuine hearing he must have leave to appeal to the Court of Appeal. He also seeks leave to appeal Lang J's decision to award the Attorney-General costs on a category 2B basis, less 15 per cent, and disbursements.

[5]      The Attorney-General opposes both applications, on the ground that neither discloses any question of law or fact capable of bona fide and serious argument, let alone any affecting an interest of sufficient public or private importance to outweigh the cost and delay of the further appeal.

Criminal proceedings

[6]      As a result of an incident on 17 December 2007, while he was in his garden at his home, Mr Colman was arrested on a charge of disorderly conduct, a charge he denied and defended, that was dismissed when it was eventually heard on 16 June

2008.

[7]      Seven days before that hearing, however, the police laid a second charge against Mr Colman arising from the same incident, alleging that Mr Colman had used insulting language. At the 16 June 2008 hearing Mr Colman was convicted of that second offence and ordered to come up for sentence if called upon within six months.

[8]      On 28 October 2008 the Judge, who entered that conviction, granted Mr Colman a rehearing. He was not satisfied that Mr Colman had received notice of the second charge before the 16 June 2008 hearing. He accepted that Mr Colman had not at the hearing entered any plea to that charge.

[9]      On 3 April 2009, at the rehearing granted, Mr Colman accepted that he had used the words complained of, but contended that he had been justified in law. He had used them in defence of himself or his property.1  The Judge held that neither defence applied. Mr Colman was not charged  with an offence involving the use or threatened  use  of  force.  The  only  issue  was  whether  he  had  used  the  words recklessly. In finding that he had, the Judge convicted him and fined him $250.

[10]     By that point Mr Colman had filed informations against the police officers instrumental in his arrest and prosecution, and ministers of the Crown, alleging NZBORA abuses. A Judge declined to authorise the issue of the summonses called for.

[11]     On 22 December 2009 Allan J dismissed Mr Colman's appeals against his conviction and sentence and the decision declining the issue of summonses. Allan J concluded that Mr Colman's conviction involved no error but nevertheless set it aside. The conviction, he held, and the fine, were disproportionate to Mr Colman's offence. Allan J discharged Mr Colman without conviction, the effect of which was that he was deemed acquitted.2

[12]     Mr Colman did not accept that Allan J had the ability to enter that discharge. He considered that he had been discharged once and for all when his conviction had

1      Crimes Act 1961, ss 48, 56.

2      Sentencing Act 2002, s 106.

been set aside on the grant of the rehearing. His later conviction and sentence, he contended, were invalid, as was Allan J's intervention on the appeal. He applied for leave to appeal to the Court of Appeal that and other aspects of Allan J's decision. On

6 July 2011 Hugh Williams J declined that application. Mr Colman, he held, had raised no 'question of law', which 'by reason of its general or public importance or for any other reason', justified leave. His wider complaints were collateral and irrelevant.

[13]     On 19 October 2011 the Court of Appeal declined Mr Colman's application for special leave to appeal, as did the Supreme Court on 8 December 2011. Each held that there was no jurisdiction to entertain any appeal - and thus any application for leave to appeal - against a discharge without conviction, which is a deemed acquittal in law.

Nine civil claims

[14]     Mr Colman's essential point was then, and remains, that he is not a criminal and has never been culpable of a criminal act. Yet he has been prosecuted for two offences and branded by a conviction entered for one. The fact that that conviction has been set aside does not alter the taint that it then carried and still does; and that has been compounded by serious breaches of his NZBORA rights.

[15]     Eight strangers, Mr Colman says, came on to his property. He asked them repeatedly to leave. For 31 minutes he was subjected to torment. When they did not leave, he went towards his house to call the police. He was followed by one for 15 metres. To bring an end to what had become a breach of the peace, he says, he had no choice but to use the words he did.

[16]     Ironically, Mr Colman says, it was the man who followed him who called the police. Two officers arrived. One, having spoken to him very briefly, decided that, though there were eight trespassers on his land, he was accountable for disorderly behaviour; a decision, Mr Colman says, that effectively ended his life. That officer arrested him, but the other officer, a woman, who had spoken to the others present,

including witnesses, concluded that he was the true victim. As to that, the two officers were at arm's length on the way back to the police station.

[17]     As  a  result,  Mr  Colman  believes,  the  woman  officer  became  ostracised. Within six months, he says, she resigned from the police. A live issue when he was prosecuted, he says, was whether she had been constructively dismissed. He believes that the police then became intent on vindicating his arrest. They set out to deny him any ability to defend himself and to discourage the woman officer from giving evidence on his behalf.

[18]     The police, Mr Colman contends, did not make proper disclosure to him. They deliberately delayed the hearing of the first charge against him. As a result of that and later adjournments, the woman officer became discouraged. Without her evidence he lost the ability to contest fully the charges laid against him. These breaches of his NZBORA rights, he contends, were compounded judicially.

[19]     Mr Colman has, since the criminal proceedings, instituted nine civil claims against  the Attorney-General  alleging  NZBORA breaches.  Those  claims  can  be summarised in this way:

(a)      The officer who arrested Mr Colman on 17 December 2009 breached his right to be treated with humanity and respect by failing to seek medical attention for him.3

(b)The  decision  on  18  March  2008  to  adjourn  the  hearing  of  the disorderly conduct charge to 16 June 2008, excusing deliberate police delay, breached his rights to a fair trial, to trial without undue delay and to natural justice.4

(c)      The hearing on 16 June 2008 was in breach of his fair trial rights because he was not given notice beforehand of the insulting language

charge.5

3      New Zealand Bill of Rights Act 1990, s 23(5).

4      Sections 25, 27.

5      Sections 24, 25, 27.

(d)      His conviction for use of insulting language at the hearing on 16 June

2008 breached his fair trial rights because he had not been called upon at the hearing to plead to that charge.6

(e)      At the rehearing on 23 April 2009 he was tried in breach of his right not to be subjected to double jeopardy, having been finally acquitted of that offence when the rehearing was granted and thus entitled to plead autrefois acquit.7

(f)       At  the  rehearing  he  was  confined  to  contesting  the  issue  of recklessness only and was improperly denied the ability to justify what he did as a step taken to prevent a breach of the peace.8

(g)His arrest, defended hearing and his appeals to this and higher Courts were all unlawful and unfair because the issue whether he acted legitimately to  prevent  a breach  of the peace  was  not  considered relevant.9

(h)The police kept information from him unlawfully regarding the whereabouts of the police officer who might have assisted his case.

(i)On  his   appeals   his   complaints   about   the  rehearing   were  not considered, and in this Court he was 'tricked' into applying for a discharge without conviction to curtail his further rights of appeal.10

[20]     The Attorney-General applied to have these claims struck out on three bases: (i) they were an  abuse of process because they were collateral attacks on  final decisions taken in the criminal proceedings in the District Court and on appeal, (ii) they disclosed no arguable cause of action, (iii) as to some they were frivolous and

vexatious because the errors relied on had soon been remedied.

6      Sections 25, 27.

7      Section 26.

8      Sections 25, 27.

9      Section 25.

10     Sections 25, 27.

[21]     On 10 October 2011 all but one of these nine claims were struck out in the District Court as abusive collateral attacks. The Judge did not strike out Mr Colman's complaint that he had been denied medical assistance at the police station after arrest, in breach of s 23(5) NZBORA, but held that it would have to be repleaded.

[22]     On the appeal, in the decision Mr Colman now seeks leave to appeal to the Court of Appeal, Lang J held that the Judge at first instance had struck out all the claims but one as collateral attacks in an 'omnibus fashion'. He therefore assessed each claim himself and with one exception held that all had been rightly struck out. All involved collateral attacks or they were simply untenable.

[23]     The one claim that Lang J held ought not to have been struck out concerns Mr Colman's complaint that, before the hearing on 16 June 2008 in which he was first convicted of using insulting language, the police did not serve a summons on him relating to that charge.

[24]     Mr Colman could not, Lang J held, rely in that claim on s 25 NZBORA, which guarantees fair trial rights or s 26, which relates to retroactive penalties and double jeopardy, when he had not been finally convicted or acquitted of the offence. He could claim under s 24(a) and (d) that he had been denied adequate time and facilities to prepare his defence.

[25]     Any such breach, Lang J held however, had been soon remedied by the grant of the rehearing and had ceased to have any effect by the time of the rehearing; and so while Mr Colman was entitled to have the issue resolved, he was unlikely to be entitled to anything more than declaratory relief.

Leave to appeal

[26]     A decision of this Court, on an appeal from the District Court, is final unless this Court grants leave to appeal to the Court of Appeal, or the Court of Appeal

grants such leave itself.11

11     Judicature Act 1908, s 67(1), (2).

[27]     To qualify for leave, the Court of Appeal said in Waller v Hider,12 'the appeal must raise some question of law or fact capable of bona fide and serious argument in a  case  involving  some  interest,  public  or  private,  of  sufficient  importance  to outweigh the cost and delay of the further appeal'. For as the Court then said:13

It  is  not  every  alleged  error  of  law  that  is  of  such  importance,  either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

[28]     In Snee v Snee14  the Court of Appeal emphasised the stringency of this test. Its primary function on appeal, it again emphasised, is to decide whether the law has been 'properly construed and applied'. Its function is not just to correct error. It is to clarify the law. Only seriously arguable and significant errors lie within its province.

Conclusions

[29]     In contending, in his application for leave, that Lang J made 39 errors of fact or law Mr Colman sets out to vindicate, just as he did before Lang J, every point that he pursued unsuccessfully in the criminal proceedings that are already the subject of decisions that are final and definitive.

[30]     Mr Colman's challenge to Lang J's conclusion that all, or most, constitute collateral attacks in abuse of the Court's process, is not seriously arguable. He may contend that in challenging the reasoning of those decisions he was not challenging the results. The reality is that he is challenging both and the decisions taken in their reasoning and results are now beyond challenge.

[31]     Mr Colman's related challenge to Lang J's conclusion that a number of these claims are also untenable, is not seriously arguable either. On the appeal, a general appeal by way of rehearing, Lang J was obliged to assess for himself the merits of Mr Colman's claims on both questions of fact and law.15 He was not confined to the

decision  under  appeal  or  to  Mr  Colman's  sole  ground  of  appeal.  His  ultimate

12     Waller v Hider [1998] 1 NZLR 412, 413.

13     At 413.

14     Snee v Snee CA198/99, 1 November 1999 at [22].

15     District Courts Act 1947, ss 72, 75; Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2

NZLR 481 (SC).

reference point was the Attorney-General's strike out application, which as well as raising collateral attack, also rested on general untenability.

[32]     Mr Colman, I accept, strongly believes that his life was destroyed by the incident as a result of which he was charged and prosecuted. I accept also that the offences with which he was charged, and his brief conviction, remain of the utmost seriousness to him. But that cannot justify a grant of leave to pursue questions, which are now beyond argument. I decline, therefore, his principal application for leave.

[33]     Mr  Colman's  proposed  appeal  against  the  costs  award  is  not  genuinely arguable either. Lang J awarded costs on the conventional principle that costs follow the event. He awarded less than scale costs to take account of Mr Colman's offsetting

success. I decline that second application also.

P.J. Keane J