Gillette v Green

[2018] NZHC 1118

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2018-485-29

[2018] NZHC 1118

BETWEEN

B

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

15 May 2018

Counsel:

Appellant in Person with Mr Broadstock, McKenzie Friend (via AVL)

E M Light for Respondent

Judgment:

21 May 2018

JUDGMENT OF THOMAS J

[1]    The appellant1 was charged with wilful trespass on 5 February 2018.2 He seeks to appeal what he alleges was a decision of Judge Phillips in the Dunedin District Court transferring his proceeding to the Wellington District Court.

Background

[2]    The charge arose from the appellant’s alleged trespass on Parliament grounds on 5 February 2018. According to the appellant, his actions were necessary because of offending of the Independent Police Conduct Authority, the New Zealand Police, the majority of the members of the judicial system and successive governments.

1      There is a question whether the appellant’s name has been officially changed and whether there is cause for confidentiality. For the sake of caution, the appellant’s name has been anonymised in this judgment.

2      Trespass Act 1980, ss 4(4) and 11(2)(a); maximum penalty a fine not exceeding $1,000 or imprisonment for a term not exceeding three months.

B v POLICE [2018] NZHC 1118 [21 May 2018]

[3]    The appellant was released on police bail on 5 February 2018. He was required to attend personally at the Wellington District Court on 9 February 2018.

[4]    On 8 February 2018, the appellant filed an application in the Wellington District Court to transfer the proceeding to the Dunedin District Court pursuant to     s 157 of the Criminal Procedure Act 2011 (the Act). The appellant lives in Dunedin.

[5]    The appellant did not appear on 9 February 2018 in the Wellington District Court. The Record of Hearing records that the prosecution declined to consent to the transfer application because the appellant had not intimated a guilty plea. A warrant to arrest was issued by the Deputy Registrar.

[6]    On 12 February 2018, in the Dunedin District Court, the appellant was remanded at large by a Justice of the Peace to appear on 16 February in the Dunedin District Court. The appellant appeared on 16 February 2018 in the Dunedin District Court before Judge Phillips. The appellant entered a not guilty plea and was remanded on bail to a case review hearing on 5 April 2018 in the Wellington District Court.

Grounds of appeal

[7]    The appellant filed a Notice of Appeal dated 4 April 2018. In the notice, the appellant sets out his understanding the proceeding was transferred to the Dunedin District Court but, on 16 March 2018, Judge Phillips transferred the hearing back to Wellington. The appellant submits Judge Phillips refused the appellant’s lawful right to a fair and public hearing by an independent and impartial court and his lawful right to present a defence at his trial.

Submissions

[8]    The appellant appeared at the appeal hearing by AVL from Dunedin, accompanied by his McKenzie Friend. The appellant initially requested an adjournment of the hearing on the basis the facilities in the AVL room were not, in his opinion, adequate. In particular, there was no desk. I have been informed that the room is one of two rooms set up in the Dunedin Court buildings and is used by counsel.

In any event, the appellant spoke at some length about matters of concern to him and was able to participate in the appeal. There was no need for an adjournment.

[9]    The appellant has a history of involvement with the New Zealand courts. His submissions make a number of serious allegations against the New Zealand Police, the judiciary and successive governments. The appellant alleges breaches of his rights, bias and intentional endangerment of his life have occurred in a variety of ways.

[10]   The appellant attached a number of documents to his submissions. These included a letter of complaint dated 12 April 2018 addressed to the Police Complaints Authority in respect of a review letter addressed to the appellant by the Independent Police Conduct Authority dated 25 June 2008; a copy of that review letter; a list of witnesses dated 30 March 2016 the appellant wanted to summons in respect of an earlier trespass charge, including the former Prime Minister, the Rt Hon John Key; and the appellant’s affidavit, dated 27 March 2018, attaching what appears to be a charging document created by the appellant alleging conspiracy to defeat justice against the CEO of the Witness Protection Programme and an accompanying summary of facts. The appellant submitted a number of issues relating to those allegations should be dealt with before the transfer application was considered.

[11]   In relation to the application for transfer itself, the appellant alleged Judge Phillips breached his right not to be subjected to torture or cruel treatment,3 freedom of expression,4 freedom from discrimination,5 minimum standards of criminal procedure6 and right to justice.7

[12]   The appellant said Judge Phillips refused to allow him to present a defence, to explain why he wanted the matter transferred to the Dunedin District Court or to explain that the majority of the appellant’s defended hearings are via audio-visual link (AVL). The appellant’s notice records it has “already been established” his hearing could be conducted by AVL. All Judge Phillips needed to do was to allocate a fixture

3      New Zealand Bill of Rights Act 1990, s 9.

4      Section 14.

5      Section 19.

6      Section 25.

7      Section 27.

for a defended hearing and the logistics of an AVL hearing could have been dealt with by submissions as usual, the appellant suggested.

[13]   The Crown submitted it is unclear whether a decision under s 157 of the Act has in fact been made but, in any event, the appellant has no right of appeal under the Act against the decision.

Assessment

[14]   The appellant’s application to transfer filed on 8 February 2018 was made pursuant to s 157 of the Act. Section 157 provides:

157 Transfer of proceedings to court at different place or different sitting

(1) A District Court Judge may, on his or her own motion or on the application of the prosecutor or the defendant, transfer a proceeding to the District Court at a place or sitting other than that determined in accordance with section 35, 71, 72, or 73, as the case may be, if the court is satisfied that it is in the interests of justice that the proceeding be heard at that other place or sitting.

…

(3)With the consent of all parties, an order under this section may be made by the District Court presided over by 1 or more Justices or 1 or more Community Magistrates in respect of a proceeding for—

(a)a category 1 or 2 offence; or

(b)a category 3 offence punishable by a term of imprisonment not exceeding 3 years, if the defendant has not elected a jury trial.

(3A)     A Registrar may exercise the power specified in subsection (3).

(4)Except as provided in sections 217 and 218, no person may object to any order under this section.

[15]   The Court file records the application was considered by the Deputy Registrar at the call of the matter on 9 February 2018. A Deputy Registrar may make an order transferring a proceeding where all parties consent to the order.8 The prosecution declined to consent to the application. Therefore, a Deputy Registrar could not have made an order.

8      Criminal Procedure Act 2011, s 157(3A).

[16]   There is no evidence that a District Court Judge transferred the proceeding to the Dunedin District Court. Therefore, the proceeding remained a Wellington District Court matter.

[17]   A warrant to arrest was issued by the Wellington District Court on 9 February 2018 because the appellant had failed to appear in Wellington on that date. The appellant’s file was scanned to the Dunedin District Court on 12 February 2018 so that the Dunedin Court could process the appellant’s arrest.

[18]   When the appellant appeared in the Dunedin District Court on 16 February 2018, Judge Phillips remanded the appellant on bail pending a case review hearing in the Wellington District Court on 5 April 2018.

[19]   I have now obtained a transcript of the hearing before Judge Phillips. The exchanges between the Judge and the appellant were somewhat confused, both, as they were, talking over one another. The Judge did say, “You have applied to have this file transferred”. The appellant tried to interrupt the Judge, saying, “Actually”. The Judge then rebuked the appellant for interrupting him. He observed that the file would normally be transferred only on a guilty plea. He said, if the appellant wanted to defend the charge, it must be sent back to Wellington for hearing. The appellant then entered a not guilty plea. He suggested the case could be heard by AVL but the Judge declined to deal with that aspect. The Judge observed that the matter would be heard in Wellington.

[20]   As I explained to the appellant at the appeal hearing, when a defendant has pleaded not guilty, it is highly unlikely the case would be transferred to another court. This is because the trial generally takes place where the alleged offending occurred. That is generally where witnesses are likely be based.

[21]   Although the appellant appeared in the Dunedin District Court following the arrest warrant, the proceedings remained in the Wellington District Court because there had not been a transfer under s 157 of the proceedings from Wellington to Dunedin at any stage.

[22]   Even if there was an application before Judge Phillips to transfer the case from Wellington to Dunedin, he, admittedly in a relatively cursory way, dealt with the application, declined it and gave reasons.

[23]   It was not, in those circumstances, for the Dunedin-based District Court Judge to make any decisions about whether the appellant could appear at the trial by AVL. That will be a matter to be addressed at a later stage, when the trial date is allocated. In saying that, as well as the availability of AVL, there are other factors which must be considered before AVL is used in a criminal substantive matter, being any criminal proceeding in respect of which evidence is to be called.9 Furthermore, AVL must not be used for the appearance of a defendant in a trial which determines his or her guilt or innocence unless the defendant consents to that use.10

[24]   In any event, the ability to appeal a decision under s 157 of the Act is circumscribed by s 157(4). No person may object to any order made under s 157 unless the appeal rights in ss 217 and 218 of the Act apply.11 Sections 217 and 218 apply to rights of appeal in pre-trial decisions in jury trial cases in proceedings for category 3 or 4 offences. The appellant’s charge is a category 2 offence.12 This means there is no ability to appeal a decision to transfer or refuse to transfer a charge of trespass.

Result

[25]   There is no right to appeal the decision at issue. The appeal is therefore dismissed.

[26]   I understand 14 August 2018 has been allocated at the Wellington District Court for a judge alone trial. If the appellant wishes to attend by AVL, he needs to

9      Courts (Remote Participation) Act 2010, s 3, definition of “criminal substantive matter”.

10     Section 9(2).

11     Criminal Procedure Act 2011, s 157(4).

12     Section 6(1).

make  an  application  to  the  Wellington District Court.    Any application must be considered by a judicial officer.13

Thomas J

Solicitors:

Crown Solicitors’ Office, Wellington

13     AVL must not be used in any criminal substantive matter for the appearance of a defendant unless a judicial officer determines to allow its use taking into account the relevant factors and whether the parties to the proceeding consent. In particular, the appellant must consent: Courts (Remote Participation) Act 2010, s 9. Other relevant factors are included in s 5: nature of the proceeding, availability and quality of technology, potential impact of the use of technology; and in s 6: ability of the defendant of comprehend the proceedings, to participate effectively, consult and instruct counsel privately, access relevant evidence, examine the witnesses for the prosecution, level of contact the defendant has with other participants and any adverse impression that may arise by the defendant appearing by AVL.