Dawson v Ministry of Health HC Auckland CRI-2011-442-13

[2011] NZHC 1293

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-442-13

BETWEEN  JAMES MICHAEL DAWSON Appellant

ANDMINISTRY OF HEALTH Respondent

Hearing:         17 October 2011

Counsel:         Appellant in person

S C Tune for Respondent

Judgment:      19 October 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 19 October 2011 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Meredith Connell (Auckland) for Respondent

(copy to Appellant in person)

DAWSON V MINISTRY OF HEALTH HC AK CRI-2011-442-13 19 October 2011

Introduction

[1]      Following a defended hearing in the District Court  at Nelson on 30 July

2010, the appellant was convicted by Judge Zohrab of 14 offences against the Health Practitioners Competence Assurance Act 2003.   Two of the offences were against s 9(4) of the Act.  These related to performing a restricted activity whilst not a health practitioner, namely a chiropractor, permitted by his scope of practice to perform that activity.    12  charges  related  to  breach  of  s 7(2)  of  the  Act,  namely  placing advertisements in publications, or signs, calculated to suggest that the appellant practiced or was willing to practice a profession as a health practitioner, namely a chiropractor, without holding a current practising certificate as a health practitioner of that kind and without being a practitioner of that kind.

[2]      The appellant was sentenced on 27 January 2011 and fined $1,500 on each of the two breaches of s 9 and $500 on each of the 12 breaches of s 7 (making a total of

$9,000).  He was also ordered to pay court costs of $132.89.

[3]      The appellant appeals against his conviction and his sentence and specifies as his grounds of appeal:

1.        The Judge was wrong in fact and law.

2.        The sentencing notes contain false allegations.

3.        There are no “victims” of my actions (“offending”).

4.I am not acting in breach of the Act and hold a valid diploma in chiropractic and have met qualification standards in NZ.

5.The fine imposed was unfair and excessive and I am not able to pay it.

6.        This  prosecution  is  based  on  unlawful  actions  of  MOH  and

Chiropractic Board actions and this is serious injustice.

[4]      The appellant developed three arguments before me:

(1)       That his lawyer in the District Court did not represent him adequately.

The lawyer did not like the appellant (and had obtained a trespass notice against the appellant prior to the hearing, although it was never

served on the appellant).  The lawyer did not follow the appellant’s

instructions at the hearing.

(2)Abuse of litigation.  The appellant perceives a vendetta against him by Ministry of Health officials relating to his attempts to become registered as a chiropractor in New Zealand.   He would like me to refer these complaints to a judicial review hearing in this Court.

(3)He is living in terror.  Seven police officers have come to his place with search and arrest warrants accusing him of being a rapist and a murderer, among other charges.   However, when he went to the Henderson Police Station to inquire he was told that the Police do not know who he is.  This is, I infer, part of the systemic persecution to which the appellant believes he is subject.

[5]      In support of his appeals the appellant handed me various letters, several of which are supportive of him and which go to his proficiency as a clinician.   The authors of these letters appear to be chiropractors.  They are also to the point that the appellant should have been given passing grades on his 1996 examination for registered chiropractic status.

Appeals against conviction

[6]      I have reviewed the file carefully.

[7]      The two charges against s 9 were found proved on the uncontested evidence of two witnesses who reported physical manipulations being performed on them by the appellant.    Expert evidence was given, again uncontested, that these manipulations were restricted activities.   There was uncontested evidence that the appellant was not a health practitioner permitted to perform those activities. Accordingly, I can see no scope for challenge to the convictions on those charges.

[8]      The remaining charges each related to a particular piece of advertising or signage.     Judge  Zohrab  carefully  analysed  each  one  and  concluded  that  the

inferences to be drawn from their plain meaning coincided with the elements of proof  required  of  the  prosecution.     I  cannot  disagree  with  Judge  Zohrab’s conclusions.

[9]      I now look at whether the appellant was adequately represented, such that an available defence might have been put but was not.

[10]     The background to this ground of appeal is set out in the judgment of Judge

Zohrab as follows:[1]

[1] Ministry of Health v Dawson DC Nelson CRI-2008-042-3385, 30 July 2010.

[3]       This matter was set down for a defended hearing lasting three days to commence Monday this week, being 26 July, with the final two days of the hearing being 29 and 30 July.

[4]       Mr Dawson did not appear when the matter was called on 26 July, and Mr Bamford as counsel appeared on his behalf. As a consequence of the non-appearance, Mr Bamford was granted leave to withdraw, although he did indicate that Mr Dawson was travelling from the North Island and was intending to appear on the Thursday and Friday.  Mr Bamford indicated it might well be advanced by way of explanation for his non-appearance that Mr Dawson’s understanding of the situation was that he was not required to appear on 26 July.

[5]       Having granted Mr Bamford leave to withdraw, the informant was then entitled to seek to formally prove the matters, these being fine-only matters, meaning that Mr Dawson’s attendance was not required. The matter was adjourned briefly so that Ms Bonifant, on behalf of the informant, could ascertain the availability of the various witnesses, given that some of the witnesses were not scheduled to be called until 29 July.

[6]       Whilst arrangements were being made to determine whether or not the matter could proceed on the Monday by way of formal proof, the Court received a facsimile from Mr Dawson advising that he was travelling from the North Island, that he had understood that he would not be required to appear on the Monday, and that Mr Bamford was going to appear on the Monday on his behalf.  He advised that he would be appearing on Thursday and Friday to defend the matter, and anticipated calling witnesses.  He also expressed concern about how he might be left without legal representation.

[7]       After resuming in open Court, Ms Bonifant elected on behalf of the informant not to formally prove the matter, as that could only be done on a part-heard basis.  Rather, it was agreed that the matter should be adjourned through until Thursday 29 July when all of the informant’s witnesses would be available.  Given that no adjournment had been requested by Mr Dawson or his counsel prior to 26 July, and given that witnesses had travelled to Nelson on 26 July and had to return, and it is anticipated that they would be required to once again travel here for 29 and/or 30 July, Ms Bonifant asked the  Court  on  behalf  of  the  informant  that  the  issue  of  costs  on  the

adjournment  be  reserved,  and  particularly the  travel  costs  and  the  extra anticipated travel costs.

[8]       On 28 July, the Court received a memorandum from Mr Bamford in which  he  proposed  that  the  matter  proceed  on the following basis, that Mr Bamford be appointed as counsel to assist, that subject to the resolution of issues regarding Ms Bannister’s evidence, she now being deceased, that all of the informant’s evidence could be admitted by consent.   The Court would then consider the evidence and reach a determination as to whether or not one or more of the charges were proven.  If one or more of the charges were  proven,  then  it  was  anticipated  that  Mr  Bamford  would  make sentencing submissions, possibly with a view to seeking a discharge without conviction.

[9]       Given that Mr Bamford was no longer counsel on the record, I had enquiries made through the registrar as to whether Mr Dawson was in agreement with the proposal, and the Court received on 28 July a copy of Mr Bamford’s memorandum signed by Mr Dawson.  So it was clear that he had seen the proposal.

[10]      The  matter  was  then  called  on  29  July  in  open  Court  with Mr Dawson  present  and  Mr  Bamford  as  counsel  to  assist  the  Court confirmed in Mr Dawson’s presence that he was appearing as counsel to assist, and that the matter could proceed as suggested in his memorandum subject  to  the  resolution  of  some  issues  in  relation  to  Ms  Bannister’s evidence.

[11]     The appellant was unable to point to any defence which might have been put by Mr Bamford on his behalf and which was  not put.   He certainly pointed to matters which he would have wished Mr Bamford to put forward but which were not; in particular, his view that he is being treated unfairly by Ministry of Health officials,  that  he  has  never  injured  anyone  as  a  chiropractor,  and  that  the  two witnesses  who  were  the  subject  of  the  s 9  charges  had  never  made  complaints themselves.   Unfortunately for the appellant, none of those matters would have constituted a defence to the charges.

[12]     The fact is that the appellant has been engaged in a series of confrontations with the Ministry of Health for many years.  This is the third time he has come to this Court appealing convictions for practising as a chiropractor without being registered as such.2   This has become an obsession for him.  He is unable to view his situation logically and dispassionately.  His second and third grounds of appeal put

before me and quoted above illustrate this.

2      The two previous occasions being Dawson v Ministry of Health HC Auckland A24/99, 9 August

1999, Laurenson J, and Dawson v Ministry of Health HC Nelson CRI-2009-442-15, 13 July
2010, French J.

[13]     This appeal is not the occasion for the appellant to pursue his grievances.  I

cannot, as he asks, refer his case to a judicial review hearing. [14]     The appeals against conviction are dismissed. Appeals against sentence

[15]     The only submissions that the appellant has made against his sentence are that his life has been ruined by the successive convictions he has had; his mental health has been affected by the situation that he is in; and I take it also that he would stand by his fifth ground of appeal, namely that the fines imposed were unfair and excessive.

[16]     While I accept that the effects on him of his conflict with the Ministry of Health have been severe, I am afraid that I am unable to agree with the appellant that the fines were unfair and excessive.  Judge Zohrab considered the matter carefully and sensitively.  Given the appellant’s previous history, there had to be significant fines imposed.   If anything, Judge Zohrab was lenient.   Accordingly, the appeals

against sentence are also dismissed.

Brewer J