H v Police HC Auckland CRI 2008-404-78

[2008] NZHC 1073

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-0078

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 July 2008

Appearances: A Longdill for the respondent

Appellant in person

Judgment:      9 July 2008

JUDGMENT OF STEVENS J

This judgment was delivered by Justice Stevens on Wednesday, 9 July 2008 at 11am pursuant to r 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Auckland

Copy to:

I H  , 713 Apt, 3-18 Miyako Dori Danchi, Hounen Cho, Chikyza Ku, Nagoya, Japan

H V NZ POLICE HC AK CRI 2008-404-0078  9 July 2008

Introduction

[1]      In February 2008 Mr H   was convicted in the District Court at Auckland on three charges of without claim of right and with intent to cause loss, wasted or caused water to be wasted.  He was convicted and fined $200 on each charge and also ordered in respect of one of the charges to pay Court costs of $130.  Mr H   appealed to the High Court against the convictions and Courtney J heard the appeal on 19 May 2008.

[2]      The charges relate to events that occurred on Great Barrier Island in March

2004.  The three complainants, Messrs Shaw, Gardiner and Wratt, owned properties adjoining Mr H  ’s section.   All four properties drew their water through a gravity-fed system from a stream on a property belonging to a Mr Smith.  Some time on 31 March 2004 the pipes to the water supply of the three complainants were cut. Mr Smith’s water supply was not affected and neither was that of Mr H  .

[3]      The key question on appeal was whether the evidence led by the prosecution in the District Court proved beyond reasonable doubt that Mr H   was the offender.  In a reserved judgment, Courtney J dismissed the appeal.

[4]      Mr H   has sought leave of the High Court to appeal to the Court of Appeal under s 144 of the Summary Proceedings Act 1957 (the Act).  In the absence of Courtney J, the application for leave was argued before me on 7 July 2008.  For the reasons set out below, the application must be dismissed.

The law relating to second appeals

[5]      The jurisdiction to grant leave to appeal from a decision of the High Court to the Court of Appeal is governed by s 144 of the Summary Proceedings Act.   The High Court may only grant leave if there is a question of law involved in the appeal and it is of the opinion that the question of law involved is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[6]      The leading authority on the test for the grant of leave is R v Slater [1997] 1

NZLR 211 (CA).  There the Court of Appeal confirmed at 215 that there are three prerequisites for leave to be granted under s 144(2):

a)       A question of law must be involved.

b)The question must be one which by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal.

c)       The Court must be of the opinion that it ought to be so submitted.

[7]      The Court of Appeal also stated (at 215):

Section 144 was not intended to provide a second tier of appeal from decisions   of   the   District   Court   in   proceedings   under   the   Summary Proceedings Act.   Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted.  Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

The decision of Courtney J

[8]      On appeal, Courtney J correctly observed at [3] that the prosecution case in the District Court turned on circumstantial evidence.   She further stated, again correctly, that the appeal was one by way of rehearing on the basis of the record and that the appellate court was required, applying the approach of the Supreme Court in Austin Nichols v Stichting Lodestar [2008] 2 NZLR 141, to reach its own view on the merits. Whilst the Judge on appeal may defer to the findings made in the District Court, she was not bound to do so.

[9]      Next, Courtney J carefully summarised the various circumstances relied upon by the prosecution in the District Court to prove the charges.  The Judge also referred at  [6]  to the  factual  circumstances  that  Mr  H    had  advanced  on  appeal  as

pointing away from his being guilty, and which he claimed the Judge in the District

Court had not given sufficient weight to.

[10]     Courtney J then concluded:

[7]  A Judge is entitled to find that various pieces of circumstantial evidence taken together are sufficient to prove a charge beyond reasonable doubt.  The Judge need not accept all of the pieces of circumstantial evidence as pointing to guilt.  Nor does each piece of circumstantial evidence in itself need to be proved  beyond  reasonable  doubt.    It  is  the  effect  of  the  totality  of  the evidence that is important.

[8]  It is true that there was a lot of attention paid during the hearing to the tools; who owned them, what state they were in and what they were used for. On the other hand it is clear from Constable Robbins’ cross-examination that the police were not wedded to the proposition that it was these tools that caused the cuts.  The fact that Mr H   may not have had the tools with him on the Wednesday or that they may not have been sharp enough to sever the pipes does not significantly detract from the force of the other evidence.

[9]   The most compelling aspects of the evidence are the facts that Mr H   was in the very area where the damage happened at the very time it was most likely to have happened, that  only his  and  Mr  Smith’s  water supplies were unaffected and there were inconsistencies in his explanation for his purpose in being there that day.  The coincidence of Mr H   being present at the very time the damage was most likely to have occurred and with the inconsistencies in his explanation for being there point very strongly towards guilt.  I consider that the circumstances pointing towards Mr H   being the offender were sufficiently compelling that the points Mr H   raised  do  not  detract  from  their  overall  strength.    Taken  together,  the evidence was sufficient to prove beyond reasonable doubt that Mr H   was the offender.

The application

[11] As he is required to do by s 144 of the Act, Mr H has sought to identify a question of law upon which to found his application for leave. This is the first of the three-step process noted at [6] above. It is convenient to endeavour to summarise Mr H ’s attempted articulation of a point of law.

[12]     The first suggested point of law is perhaps best shown in the  following passage at 2.1.4 (In Review):

Chronologically, the vectors of three trails of orange dazzle paint are not important, each trail marking required the passage of time.    The chronological  message  of  the  three  trails  of  orange  dazzle  paint  is

compellingly blatant.  Professor H   had zero time to do any damage to any water pipe and, in the reality of Einstein-Minkowski Spacetime, barely sufficient time to catch the 5PM flight from Claris back to Auckland.

[13]     The second proposed point of law emerges from 3.2.3 (Review):

COURTNEY J has erred in approach by ignoring the fact that Judge LEE did find that the old tools did do the damage to the water pipes, although it was neither established that such old tools could do the damage nor that the old tools were even on Great Barrier Island on the day in question.

[14]     The third proposed point of law seems to come down to the following:

No forensic evidence was presented by the p original that the old tools, i.e., trenching shovel and Graft (Luger) Spade, were physically responsible for causing the type of damage that was caused to the water pipes, and, all attempts by Professor HARNETT over a nine month period to have forensics done on the Police Exhibits were blocked, frustrated, and obstructed.

[15]     The fourth proposed point of law is more difficult to discern.  However, in essence, the application refers in this part to various factual matters that Mr H   submits should have been investigated by the Police and adduced by the prosecution to support its case.

[16]     Finally, Mr H   summarised his application and included the following points:

A system of Open Justice open to Public Scrutiny and ACCOUNTABILITY requires Judge LEE to pick up the old tools, the Trenching shovel and the Graft Spade, and to replicate the ~300 cuts to the alkathene water pipe systems of Messrs Gardiner, Shaw, and Wratt.  However, this is physically impossible.  In addition, as Exhibits 8 and 9 were not on Great Barrier Island but in Auckland 31 March 2004, Judge LEE would require her arms to be

100 km in length in order to attempt the task in the Tryphena Hills.

A system of Open Justice open to Public Scrutiny and ACCOUNTABILITY requires Judge COURTNEY to buy two cans of orange dazzle paint from Barrier Builders  at  ~10.30  AM,  walk  along  Station  Rock  Road;  orange dazzle spray three vector trails consistent with the Court transcript of Judge Colin NICHOLSON, and catch the 5 PM flight from Claris to Auckland, using public transport on Great Barrier Island.  It is highly likely that Judge COURTNEY would still be wandering around in the Tryphena Hills in the dark  long  after  the  5  PM  flight  from  Claris  to  Auckland  had  passed overhead.

[17]     In his oral submissions at the leave hearing, Mr H   contended that there had been a lack of good faith on the part of the Police in bringing the prosecution

against him.  This arose in two respects.  The first related to an alleged difference in the evidence before the District Court between the contents of one of the briefs-of- evidence and the evidence actually given in Court.  The second concerned the fact that, on the morning of the District Court hearing, Mr H   was not able to have access to certain exhibits relevant to the case.

[18]     The  other  points  canvassed  by  Mr  H    were  all  variations  on,  or repetitions of, the same factual issues raised in the written submissions summarised above.

The respondent’s position

[19] For the respondent, Ms Longdill submitted that there was simply no question of law raised by the application. She also submitted that what Mr H really seeks in making this application is for a further Court either to revisit the same evidence that was considered both in the District Court and on appeal, or to consider new evidence. She gave as an example the material referred to in the passages quoted at [16] above.

[20]     In the alternative Ms Longdill submitted that, even if Mr H   had been able to present a question of law, there is no issue of general or public importance such as to warrant a second tier appeal.  Ms Longdill acknowledged that, whilst the case is undoubtedly of great importance to Mr H  , it is really a very unique case and does not involve any issues of wider significance.

[21]     Finally, Ms Longdill submitted that the points raised in oral submissions were all in essence factual questions or issues that had been fully canvassed during the hearing of the appeal before Courtney J.

Disposal

[22]     Having   carefully   considered   the   application   and   Mr   H  ’s   oral submissions in support, I am satisfied that he has not identified any point of law

arising from the decision of Courtney J.  Even if I were wrong on this point, I agree with the submission on behalf of the respondent that the case is not one which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal.

[23] Moreover, I consider, with respect, that the decision of Courtney J, and the reasoning summarised in the passages quoted at [10] above, is impossible to fault. This case involved purely factual questions. Although the prosecution case against Mr H was based solely on circumstantial evidence, the District Court and the High Court on appeal (making its own assessment on the merits) reached the same conclusion, namely, that Mr H should be, and was properly, convicted on the charges.

[24]     More generally, this is not a case where any question of law arises.  Further, the  case  is  not  one  that  meets  the  requirements  for  a  second  tier  appeal. Accordingly, the application must therefore be, and is, dismissed.

[25]     The respondent did not seek costs.  There will be no order as to costs.

Stevens J