H v Police HC Hamilton CRI 2004-419-140

[2005] NZHC 267

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2004-419-140

A    H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 November 2005

Appearances: Appellant in person

Mr M Curran for the Respondent

Judgment:      22 November 2005

(ORAL) JUDGMENT OF NICHOLSON J

Solicitors:

A P H      , 53 Bank Street, Whangarei

Crown Solicitor, PO Box 19-173, Hamilton

A P H  V NEW ZEALAND POLICE HC HAM CRI 2004-419-140 22 November 2005

[1]      Mr  A   H        appeals  against  his  conviction  for  the  offence  of intimidation and the sentence of 80 hours community work for that offence.

[2]      Mr H       was charged with the offence of harassment.  He did not plead and when the matter ultimately came before Judge Spear for resolution, Judge Spear took Mr H      ’s refusal to enter a plea as being a plea of not guilty.  There followed a defended hearing by Judge Spear on 24 November last year.   At that hearing, Mr H       represented himself.

[3]      The prosecution called Constable Murdoch and Senior Constable Collins to give evidence.  They were cross-examined by Mr H      .  Mr H       accepted that the evidence of Georgina Turner about the making of a CD record of a telephone recording be accepted without the necessity of Ms Turner attending to give such formal evidence.   After the prosecution case, Mr H       gave evidence and was cross-examined.

[4]      In his decision, Judge Spear found that the evidence did not prove the offence of harassment but that it did prove the offence of intimidation and he accordingly substituted that charge and after taking the appropriate procedural steps, convicted Mr H       of intimidation.

[5]      On this aspect of substitution, Judge Spear said:

[4]      After hearing from the two Police Constables concerned and the evidence that was admitted from one  Georgina Turner  and,  also  having heard evidence from the defendant, I exercised my discretion to substitute a charge of intimidation under s21 of the Summary Offences Act 1981 for the charge of harassment.  I did so principally because the allegations against the defendant did not, in my view, amount to harassment as defined under s3 of the Harassment Act for reasons that are necessary to detail.

[5]       A pattern of behaviour is required   There appears, in this case, to have been two instances where the defendant has become agitated with Constable Murdoch.  That, in my view, does not amount to harassment, it involves two separate incidents at its best, or as it has emerged, one case of intimidation.

[6]       After  substituting  the  charge  of  intimidation,  the  defendant  was invited  to  enter  a  plea.    He  confirmed  that  he  did  not  recognise  the jurisdiction of this Court and would not plead and that was accordingly treated as a plea of not guilty.

[7]       The Police elected not to call any further evidence and simply rely upon the evidence that has been adduced so far in this hearing.  Similarly the defendant has elected not to call any further evidence and relies upon the evidence given so far.  That is the basis upon which I come to determine this charge of intimidation. It is a charge that the defendant threatened Constable Lance Murdoch and, at the time he did so, it was with the intention of causing Constable Murdoch to fear for his personal safety.

[6]      In his notice of appeal dated 13 December 2004, Mr H       specified the grounds of his appeal as:

1)       That the charge of criminal harassment – Harassment Act 1997, s 8,

1841, was withdrawn.

2)       Insufficient evidence to prove original charge.

3)       That a new charge of intimidation was laid.

4)       Out of time for new informations to be laid.

5)Sentenced to 80 hours community work for a charge, Case 1841, which was withdrawn.

[7]      Leading up to the hearing of appeal, Mr H       was required to file written submissions in advance.  He did so in a document received by the Court on 20

September this year in which Mr H       stated as his submissions on appeal:

1)       The charge of criminal harassment was withdrawn.

2)       No evidence to prove original charge.

3)       Information does not appear to charge a crime known to law.

4)       No offence under s 21 of the Summary Offences Act 1981.

5)       Convicted of something that is not known to law as an offence.

6)       New charge of intimidation was substituted.

7)        Out of time for new informations to be laid.

8)Sentenced  to  80  hours  community  work  for  charge  which  was withdrawn.

[8]      In his submissions in support of his appeal today, Mr H       submitted that there were breaches of natural justice, that there were breaches of the Bill of Rights, that the Court did not have jurisdiction because of his sovereignty as Tangata Whenua, and that Judge Spear based his decision on lies told by the Police.

[9]      As stated, Constable Murdoch and Senior Constable Collins gave evidence at the hearing and the prosecution relied on the evidence of Georgina Turner, which was accepted.  Mr H       then gave evidence.

[10]     Constable Murdoch gave evidence that over the last two years he had been one of the Wellington based police staff who regularly relieved on the Chatham Islands.   That meant that over the last two years he had spent approximately nine months in total on the Islands.  He said that July 2002 was the start of his first five week stint relieving on the Chathams.  It was his first visit there and during those five weeks he became aware of a domestic incident between Mr H       and his partner, Shay Solomon.   He said that over the first week or so he and Mr H       spoke on numerous occasions and that he soon became aware that Mr H       had a growing dislike of him.  He said they continued to speak regularly and it culminated in an incident in mid-August 2002 when he became concerned for his personal safety so he called New Zealand and arranged for Senior Constable Collins to come down to the Island earlier than was originally planned to help him assist with Mr H      . He said that that incident in mid-August 2002 was that he was awoken just shortly after 5 am one morning with Mr H       banging on the bedroom window of the house where he was staying, that Mr H       was extremely agitated and abusive and wanted him to come outside.  He said they left where he was staying, conducted the business that Mr H       was ranting and raving about and he then returned to the flat where he was staying.  He said a short time later, Mr H       returned and drove back and forth up and down the street outside the police house, honking the horn and yelling abuse at him.  This went on for several minutes.

[11]     He said that after that particular incident, there were several telephone calls from Mr H       to him, that he recalled on one of those occasions Mr H       rang him up, initially with a simple request which became abusive, and he called him a “fucking liar”.  He said that what Constable Murdoch was saying was all “fucking bullshit”, that he was making stuff up, and he said that on another occasion Mr H       called him “Ngaitahi Pakeha Wannabe Wanker”.   Constable Murdoch said that he was a New Zealand Maori.

[12]     Constable Murdoch said that there were other incidents involving the seizing of a truck by Senior Constable Collins under a search warrant and that when he was stationed again in the Chathams in October 2003, Constable Collins instructed that for the maintenance of the truck that he should drive it to ensure that the battery maintained a charge.  He said that as a courtesy he rang Mr H      ’s mother and left a message saying that it was his intention to drive the truck as maintenance to push oil through it and keep the battery charged.  He said that either that day or the following day when he cleared the messages on the police answerphone, he heard a message from Mr H       that was menacing and threatening in nature.  He informed Senior Constable Collins of this message.  Senior Constable Collins gave evidence that he listened to the taped phone conversation – this was on the 31 October 2003; he recognised the voice as Mr H      ’s, and he gave instructions to Georgina Turner of the Police Electronic Crime Laboratory, to record the message.  Georgina Turner, in her statement of evidence which was accepted, gave evidence of her qualifications and experience in forensic signal processing and her fulltime work as a signal processing technician.   She said that on 31 October she received a request from Senior Constable Collins to download a voice message left on the answerphone of the Chatham Islands Police.  She did this and transferred it to a compact disk.  This disk she handed to Senior Constable Collins.  The message was recorded as having been received on Friday, 31 October at 11.50 am, that is just before midday, and the words of the message as recorded were:

Lance Murdoch, you Ngai Tahu Pakeha, you touched my truck mate,  you’re in serious breach, you have been warned, look out when you get back to Wellington mate.

[13]    In his evidence, Constable Murdoch said that that message made him feel concerned  that  Mr  H        presented  some risk  to  him  and  his  family when  he returned to Wellington.  He said that he recognised the voice as that of Mr H      .

[14]     In  his  evidence,  Mr  H        told  of  difficulties  with  the  police  and  in particular Constable Murdoch.  He accepted that the voice recorded on the tape was his and he said that he did not deny that he had left that message.  He said:

And there was no threat intended as the CD evidence clearly states it wasn’t said in a menacing manner, if calling a fella a mate, does that make you a friend or an enemy?

[15]     When asked about the part of the message “Look out when you get back to

Wellington mate”, he answered:

I will be pressing a civil charge against the particular officer. That’s what he should look out. Not low flying UFOs or fisticuffs, anything ridiculous like that.

[16]     In his decision, Judge Spear said:

[14]      The  prosecution  case  is  that  the  message  left  by  the  defendant amounted to a threat and that the defendant uttered that threat with the intention of causing Constable Murdoch to fear for his personal safety.

[15]      Those are the two elements that must be proved by the Crown by the prosecution to the highest criminal standard of beyond reasonable doubt. The defendant accepts that he left that message but he denies that he had any intention of causing Constable Murdoch to fear for his personal safety, or indeed that it amounted to a threat, although the second aspect was not really pushed by him to any significant degree.

[16]      I have dealt with the background to this allegation of intimidation.  It is necessary to have regard to what amounts to a threat, a threat of course is a statement of an intention to carry out some act in the future.  That normally has a sinister connotation involving fear of violence, or damage to property, or something of that nature to be uttered by words, either written or oral, or even by conduct, or a mixture of both.

[17]      In my view, the case is overwhelming, knowing that the message left by the defendant amounted to a threat.   What else could the words mean, “You have been warned, look out when you get back to Wellington mate”, particularly as it arises at a time when Constable Murdoch was aware the defendant was particularly agitated about his truck having been seized.

[18]      The second element that needs to be proved by the prosecution is that at the time threat was left, or made, the defendant intended that the Constable would fear for his personal safety as a result of the threat being

uttered.   The evidence again is quite clear about that.   What other reason could the defendant have for leaving such a message if it was not to adopt the description of the charge to intimidate Constable Murdoch.  I can accept that there may well be a significant background to this case and I can accept that the defendant may feel quite genuinely a sense of grievance against the way he has been dealt with by the Police.  I make no comment on that at all except that he appears to be quite sincere in his belief that he has been wronged in some way by the Police.  Whether he is correct in that belief is another matter entirely and it is not for me to try to determine it.

[19]      This is a case about whether a threat was made and whether there was that intention that accompanied the threat to cause the Constable to fear for his personal safety.   What else could that message mean?   “Look out when you get back to Wellington, you have been warned, you’re in serious breach”.  For whatever reason those words were uttered, it is clear that the defendant intended to cause Constable Murdoch to fear for his personal safety.  It is a classic illustration of intimidation.  I find that charge proved.

[17]     Judge Spear had  power  to  amend  the information  and  substitute another charge, as he did.  This power is granted by s 43 of the Summary Proceedings Act

1957.  That section states:

(1)  Subject to the succeeding provisions of this section, where the defendant appears to answer a charge to which this Part of this Act applies, the Court may amend the information in any way at any time during the hearing.

(2)    Without limiting the generality of the powers conferred by subsection (1) of this section, it is hereby declared that those   powers shall include power to amend an information by substituting one offence (whether an indictable offence or a summary offence) for another offence (whether an indictable offence or a summary offence), and shall also include power to amend the information to an information to which Part V of this Act applies.

[18]    Subsection (3) then stipulates the procedure that is to be followed on such amendment by substitution.  That procedure was observed in this case.

[19]    Dealing with the appeal and the particular submissions on appeal, first the charge of criminal harassment was withdrawn. The prosecution did not apply for it to be withdrawn.  The Judge decided to amend the information by substituting another offence.  As stated, he had power to do so and in my view he exercised that power for sound and valid reasons.

[20]     Second, no evidence to prove the original charge.   That is correct but the Judge dealt with this by substituting the intimidation charge and there was evidence which he accepted which proved that substituted charge.

[21]     Third, information does not appear to charge a crime known to law.  This is allied with point No. 4, no offence under s 21 of the Summary Offences Act 1981, and point 5, convicted of something that is not known to law as an offence.  It would seem that those grounds reflect what was said by Ronald Young J in a memorandum he delivered in the early stages of this appeal process on the 10 February 2005 in which he referred to the charge as substituted by Judge Spear as recorded on the information:

Threatened Lance Murdoch with the intention of causing him to fear for his personal safety.

[22]     This reflected the wording of the initial charge which alleged:

Harassed Constable Lance Murdoch with the intention of causing him to fear for his personal safety.

[23]     As pointed out by Ronald Young J, as worded the substituted charge is not an offence under s 21 of the Summary Offences Act.  The relevant wording of s 21 is:

Everyone commits an offence who with intent to … intimidate any other person … threatens to injure that other person.

[24]     I consider that if that was stated as the substituted charge, then the evidence as given at the hearing and the findings of Judge Spear would amount to proof of that offence beyond reasonable doubt.  It is understandable that in the circumstances Judge Spear adopted similar wording to that of the original charge but clearly had he referred to the actual words of s 21 he would have amended by substituting a charge with the words I have just stated.

[25]     I accordingly consider that this is an appropriate case in which the Court on appeal should exercise the power given by s 132 of the Summary Proceedings Act

1957 to amend a conviction by substituting an offence.

[26]     I consider that although submissions No. 3, 4, and 5 are technically correct as indicated by Ronald Young J, as a matter of law and justice, that should be remedied on appeal by exercising the power under s 132 of the Summary Proceedings Act and amending the conviction and substituting the offence:

That Andrew Piki H       on 31 October 2003 with intent to intimidate Lance Murdoch, threatened to injure Lance Murdoch, being an offence against s 21 of the Summary Offences Act 1981.

[27]     I amend the conviction accordingly.

[28]     I now deal with the other submissions on appeal:

6.        new charge of intimidation was substituted.

[29]     That is the case and as stated Judge Spear had power to do so and in my view it was an appropriate case in which to make the substitution.

[30]     7.   Out of time for new informations to be laid.

[31]     There was no reference to any legal time limitation and in the circumstances I

consider that the substitution was legal.

[32]     The final point is:

8.sentenced  to  80  hours  community  work  for  charge  which  was withdrawn.

[33]     I will deal with this aspect when dealing with the appeal against sentence.

[34]     Dealing with the other matters raised by Mr H       today, first breach of natural justice.  There was not a breach of natural justice.  Mr H       was dealt with according to due process of law by way of having been summonsed as a result of an information laid in a Court of law and then being tried at a fair and public hearing by an independent and impartial court.

[35]     Mr H       did not specify what provisions of the Bill of Rights he alleged were breached.  In my view, there is no breach of the New Zealand Bill of Rights Act 1990.

[36]    So far as the submission that Judge Spear based his decision on lies is concerned, Judge Spear accepted the evidence of the police officers and indeed on the critical aspect it was accepted at the hearing by Mr H       that he had left the

message on the police answerphone.  It was a question in the context of deciding whether that amounted to intimidation and whether he had an intention to intimidate Constable Murdoch.  Judge Spear found that this was so and in my view he was correct.

[37]     Next, as to the Court not having jurisdiction, this point is raised frequently in courts and has been dealt with authoritatively by the Court of Appeal and to the extent that in a recent judgment the Court of Appeal said that unless some substantial and compelling different reason is raised, this is a point which is so clearly decided that courts should not entertain re-argument on it.  It is the law of New Zealand that any person who is in New Zealand, whatever their racial, political or religious situation is, whether they are citizens of New  Zealand  or  citizens  of  any other country, are subject, because they are in New Zealand, to the laws of New Zealand as passed by the Parliament of New Zealand.  The only exception to this is when a Government of New Zealand has given a particular person diplomatic immunity. That does not arise in this case.  Accordingly, I find that Mr H       is subject to the laws of New Zealand as passed by the Parliament of New Zealand.

[38]     I accordingly dismiss the appeal, having amended the conviction as earlier stated.

[39]     Having regard to the nature and seriousness of the offence, and also the fact that Mr H       has previously been before the courts on many occasions and the nature of his previous criminal convictions, I consider that the sentence of 80 hours community work was lenient and a higher period of community work was well justified.  However, in the circumstances, I do not increase the period of community work.  I dismiss the appeal against sentence and confirm the sentence of 80 hours community work as imposed.

[40]     That sentence has, I take it, been stayed pending determination of the appeal. It will now on the dismissal of the appeal become operative.   I draw Mr H      ’s attention to the provisions of s 59 of the Sentencing Act 2002 which states that:

An offender who is subject to a sentence of community work must report in person to a probation officer in the probation area in which the offender

resides – (a) as soon as practicable and not later than 72 hours after the sentence  is  imposed;  and  (b)  as  directed  at  any  other  time  during  the sentence for the purpose of monitoring the sentence.

[41]     Mr H      , you say that you reside in Whangarei now, so in accordance with that requirement you must as soon as practicable and not later than 72 hours from now report to a probation officer in Whangarei.   If you don’t do that you may commit a further offence, so you should do that.  You have just said you will not report to a probation officer and instead will prepare to go to prison.  If you do not so

report that will be your decision and you may face legal consequences for it.

Nicholson  J