Hall v The King
[2024] NZHC 3371
•13 November 2024
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2024-442-23
[2024] NZHC 3371
BETWEEN JAMES LEE HALL
Appellant
AND
THE KING
Respondent
Hearing: 31 October 2024 Appearances:
Appellant in person, with A Hall appearing as his McKenzie friend
I R Murray for Respondent
Judgment:
13 November 2024
JUDGMENT OF McQUEEN J
[1] Mr Hall faced two charges of intimidation.1 On 4 September 2024, in a judge-alone trial in the District Court at Nelson, Mr Hall was found guilty of each charge.2 On the same day, Judge Barkle sentenced Mr Hall to 100 hours of community work and an emotional harm payment of $250 to each complainant.3
[2] Mr Hall filed a notice of appeal indicating that he appealed against conviction. His grounds for appeal are set out in the notice as follows:
Police never gave me PSO etc, charged me and then dropped the charges but only have certain timeframe to charge. Judge was very one sided never listened to me and threw out my evidence. The witnesses[’] statements (defendants) contradicted each other on the stand and were completely different form their original statements, they lied a lot, I got the blame for stuff my wife did. The Judge accepted video recordings as evidence in court that
1 Summary Offences Act 1981, s 21(1)(a); maximum penalty imprisonment for a term not exceeding three months or a fine not exceeding $2,000.
2 R v Hall [2024] NZDC 21468 [Conviction decision].
3 R v Hall [2024] NZDC 24699 [Sentence decision].
HALL v R [2024] NZHC 3371 [13 November 2024]
were taken of my private property and against Privacy Act and my humans rights and my child was in them. Everything the Crown asked for was granted and everything I asked for was denied. Sentencing was unfair as only proof of one charge not two. I have a family member willing to swear under oath to chopping a branch off my tree at the back, no proof it was even me.
[3] As the grounds include a complaint against the sentence being unfair, it is appropriate to consider the appeal as being against conviction and sentence. I record that this is how counsel for the Crown, Mr Murray, approached the matter in submissions.
[4]For the reasons below, I dismiss the appeal.
The offending
[5] The first complainant was Mr Hall’s neighbour, while the second complainant was in a relationship with the first complainant and often visited her home, where she lived with her son. While it is unclear why the animosity began, over early 2023, there was increasing hostility between Mr Hall and the complainants. This escalated, eventually resulting in an incident on 17 June 2023 that is the subject of the charges Mr Hall faced and therefore the convictions and sentence under appeal.
[6] The summary of facts records that on Saturday 17 June 2023, the first complainant was at home with her son. The second complainant arrived at the house at around midday. His arrival at the house appears to have caused Mr Hall to come outside of his house, and yell threats and abuse towards the two complainants.
[7] Mr Hall told the first complainant to kill herself, and said that if she did not, he would. As he said this, he held up a broom and pretended to fire it like a gun at her, making gunshot sounds. She reported feeling terrified.
[8] To the second complainant, the appellant stated, “I am waiting for you to leave mate, I am going to fuck you up”. This threat was recorded on a cell-phone.
[9] Following the altercation, the second complainant left the address in his car. The first complainant’s son filmed the second complainant’s car leaving the driveway.
The appellant and his wife can be seen in their backyard, with Mr Hall appearing to wave a small axe or a tomahawk towards the second complainant.
Procedural matters
[10] Mr Hall was initially charged with intimidation in relation to the actions against the second complainant; and threatening to kill in relation to the first complainant.4 The threatening to kill charge carries a jury trial election. Mr Hall elected trial by a jury. Following the case review hearing, the Crown took over carriage of the prosecution. The Crown amended the threatening to kill charge to a second charge of intimidation. As neither charge had a jury trial election, Mr Hall’s case reverted to a judge-alone trial.
[11] Mr Hall represented himself at the trial in the District Court. With the consent of the Crown, the Judge permitted Mr Hall to have his wife, Mrs Hall, as support person/McKenzie friend.5 I similarly permitted Mrs Hall to sit with Mr Hall as his McKenzie friend during the appeal hearing, with the consent of counsel for the Crown.
[12] The District Court Judge also directed that standby counsel was to assist Mr Hall throughout the hearing, such counsel already having been appointed to cross-examine the two complainants.6
[13] Timetable directions were made in this Court requiring Mr Hall to file and serve an application for leave to adduce further evidence, the proposed further evidence (by way of affidavit), submissions and authorities.7
[14] Despite these directions, Mr Hall only filed two affidavits, one from himself and the other from Mrs Hall. No application for leave to adduce further evidence was filed, nor any submissions (on the issue of adducing further evidence or on the substantive appeal).
4 Crimes Act 1961, s 306.
5 R v Hall [2024] NZDC 21376, 4 September 2024 (Ruling No. 1) at [4].
6 At [6].
7 R v Hall CRI-2024-442-23 3 October 2024.
The judgments under appeal
Conviction judgment
[15] To establish the charges, the Judge recognised that the Crown must prove in respect of each charge that on Mr Hall’s part there was “an intent to intimidate alongside the threaten to injure”.8 The Judge stated there was such an intent if Mr Hall acted with the purpose of causing the result of, or in the knowledge that it was virtually certain to result, that is, the intimidation of the person whom he threatens. The Judge noted that to intimidate is to cause or instil fear and that a threat is an expression of an intention to do what is stated, and the defendant must intend that the threat is to be taken seriously.
[16] The Judge reminded himself that there were two charges before the Court, and each must be considered separately, and a separate decision reached on each charge. The Judge recorded that the onus of proof was on the Crown and that although Mr Hall had chosen to give evidence this does not alter that the Crown must prove all necessary elements of the charges beyond reasonable doubt. The Judge stated that he can only be satisfied beyond reasonable doubt if he is sure that Mr Hall is guilty, and that if he is so satisfied, it is his duty to find Mr Hall guilty. Equally, the Judge recorded that if he is left with a reasonable doubt, it is his duty to find the charge has not been proved beyond reasonable doubt.
[17] The Judge first heard from the first complainant, who detailed the rising hostility between the neighbours over 2023, and the events of 17 June 2023. Her evidence was that on around the middle of that day, Mr Hall was sweeping the road around the bottom of the cul-de-sac and that he yelled at her, including calling her “a bipolar bitch” and saying that she “should be killed and he would do it.”9 Accompanying the comment, he used the broom he was holding to act out shooting her and made gunshot noises. The second complainant supported the first complainant’s evidence relating to what Mr Hall said, including hearing Mr Hall make the gun shot noises and saying words along the lines of, “You should kill yourself, I’ll
8 At [5].
9 At [13].
do it for you”.10 The second complainant also gave evidence that on the same day, Mr Hall was holding a tomahawk or small axe inside the gate of his property, waving it around.
[18] The Judge recorded that the first and second complainants were cross-examined by standby counsel and in both cases, the complainants rejected the suggestion that the events and threats had not taken place.
[19] The first complainant’s son confirmed he had taken the video produced in evidence at the request of his mother and the second complainant. He also described seeing Mr Hall holding a small type of axe in person, apart from the video footage. Evidence was also given by the officer in charge, who produced the audio recording made by the first complainant of the interaction between Mr Hall and the second complainant. The audio recording was played during the hearing.
[20] Mr Hall elected to give evidence. Mr Hall admitted to saying some “bad stuff” but denied the statements that were alleged to have been made by him on 17 June 2023.11 He was cross-examined on the recording of his comment to the second complainant that, “I’m waiting for you to leave mate, I’m going to fuck you up”.12 He was not prepared to accept the integrity of the recording nor transcript. While he accepted that the words could be inferred to be a threat at one point, he later resiled from that position. When questioned on the video of him holding an axe, he did not accept the photograph was of sufficient clarity to be him or show what he was holding. The Judge stated that this denial was despite corroborative evidence from the complainant’s son who saw him holding the axe.
[21] After giving himself the tripartite direction, the Judge regarded Mr Hall’s evidence as unconvincing and unworthy of belief and set it aside.13 Turning then to the remaining evidence from the complainants and the complainant’s son, he largely accepted their evidence.
10 At [21].
11 At [31].
12 At [32].
13 At [36]–[37].
[22] The Judge accepted the general background evidence as to what had been taking place leading up to 17 June 2023. The Judge accepted the first complainant’s evidence of Mr Hall’s verbal abuse, and his use of the broom to mimic a gun. The Judge also had “no doubt, bearing in mind the history of what had been taking place over the prior months” that Mr Hall intended to and did intimidate the first complainant.14 The Judge accepted she was fearful and intimidated and that it was a very serious threat by Mr Hall and had the outcome he desired.
[23] The Judge also had “no doubt” that Mr Hall said to the second complainant, “I’m waiting for you to leave mate, I’m going to fuck you up”.15 The Judge was satisfied that when Mr Hall made the statement, he intended to intimidate, and did instil fear and considerable concern in the second complainant, despite the second complainant being prepared to enter a verbal interaction with Mr Hall. The Judge found that Mr Hall held up the small axe as the second complainant was leaving, to underline the intent and seriousness of the threat, and that this was supported by the photograph and the evidence of the first complainant’s son.
Sentencing judgment
[24] As already recorded, the Judge sentenced the appellant to 100 hours of community work, together with a $250 emotional harm payment to each complainant.16 In reaching this sentence, the Judge had regard to the Sentencing Act 2002, and gave credit for Mr Hall’s good record.
The appeal
[25] As set out above, the appellant has not filed any written submissions, and his grounds of appeal are not entirely clear. Mr Hall made very limited oral submissions at the hearing. Nonetheless, it seems to me that Mr Hall raises the following matters:
(a)The Judge’s decision was unreasonable as there was insufficient evidence to convict him;
14 At [43].
15 At [45].
16 Sentence decision.
(b)The Judge was biased and unfair;
(c)The amendment of the charges was improper;
(d)Private video recordings were wrongly accepted as evidence in court;
(e)There is new evidence that should be put before the Court;
(f)The sentence was unfair because there was only one event but two charges.
Adducing further evidence on appeal
[26] As Mr Hall has not filed an application for leave to adduce further evidence, it is difficult to ascertain exactly what new evidence he seeks to adduce, and on what basis. Mr Hall was unable to clarify this at the hearing. I have therefore assumed that Mr Hall contends that the affidavits filed (from him and Mrs Hall) are the further evidence he wishes to adduce.
[27] The main points made in Mr Hall’s affidavit (some of which are submission rather than evidence) are:
(a)he asks the rhetorical question of why Police did nothing earlier in 2023 if the first complainant was so scared of him;
(b)he says that the charge was only about 17 June 2023 but the case in court was about events over all of 2023;
(c)he says that the video and audio evidence was a breach of his family’s privacy and therefore the law has been broken to enforce the law;
(d)he suggests the evidence from the complainants at the trial contradicted their witness statements;
(e)he says the video recording shows his wife pruning a tree rather than him with an axe (with the apparent implication that this is what was captured in the video, rather than Mr Hall with the axe); and
(f)there was no proof of his identity on the day in question.
[28] Annexed to Mr Hall’s affidavit are the various witness statements, a news article said to relate to the conviction of second complainant, advisory material from the Privacy Commissioner on recording a neighbour and some police National Intelligence Application (NIA) reports.
[29] Mrs Hall’s affidavit says that she was pruning a tree at around midday on 17 June 2023 and asserts that the first complainant was not scared of her or Mr Hall. Mrs Hall says that she is pursuing complaints with the Privacy Commission and the “Human Rights court” over what she describes as illegal video and audio recording of her and her child. Mrs Hall also asserts that the evidence from the complainants at the trial contradicted their witness statements.
[30] The test for deciding whether to permit further evidence to be adduced on appeal against conviction is set out by the Privy Council in Lundy v R as follows:17
… the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.
[31] The Court of Appeal has confirmed these principles apply where an appellant wishes to adduce fresh evidence for an appeal against sentence.18
17 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
18 Mark v R [2019] NZCA 121 at [16].
[32] I am satisfied that none of the material contained in the affidavits of Mr and Mrs Hall is “fresh” so as to meet the requirements of the test. As Mr Murray submitted, Mr and Mrs Hall were both available to give evidence in the trial and could have given the (purported) evidence contained in the affidavits then. Similarly, the witness statements, information from the Privacy Commission, NIA reports and the news article were all available at the time of the trial.
[33] Further, I am not satisfied that any of the purported evidence would have changed the outcome of the trial. The information of the Privacy Commission appears to actively harm Mr Hall’s position, as the application of the advice would suggest that the filming of Mr Hall or his family members would not amount to a breach of privacy, in circumstances where Mr Hall’s actions were visible from the street and there was no reasonable expectation of privacy. It is difficult to see how Mr Hall’s privacy was breached if he was filmed while swinging an axe in full view of his neighbours. I also do not accept that Mr Hall was not identified at trial, given the prosecution evidence which was accepted by the Judge.
[34] It is difficult to ascertain the relevance of the news article to the trial issues and, if Mr Hall wished to introduce it at trial, he should have done so through cross examination. Mr and Mrs Hall are of course entitled to pursue a complaint with the Privacy Commission but that is not a matter that affects this appeal. The relevance of the NIA material is unclear, and if it was provided to suggest there had been earlier tensions with the complainants, this is contrary to Mr Hall’s complaint that other events were canvassed at trial and should not have been, as the charges related only to the incident on 17 June 2023. In any event, I accept Mr Murray’s submission that the evidence relating to the period prior to that incident was background context necessary to establish why the complainants felt intimidated, that is, to prove an element of the charges.
[35] To allow Mr Hall to adduce this evidence now on appeal would not be in the interests of justice and would essentially allow him a second chance at a defence, after his first was unsuccessful. This is particularly significant in relation to his criticism of the complainants’ evidence by comparison with earlier witness statements. As Mr Murray submitted, Mr Hall has not pointed to any material difference that could
have affected the credibility of the witnesses. Mr Hall should have raised any such concerns with standby counsel so that they were addressed in cross-examination at trial.
[36] Accordingly, I conclude that the affidavits of Mr Hall and Mrs Hall are not to be admitted in the appeal.
The conviction appeal
Approach to appeal against conviction following judge-alone trial
[37] An appeal against conviction entered following a judge-alone trial will only be successful if the appeal court finds that the trial court made an error in its assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that “a miscarriage of justice has occurred for any reason”.19 The Court must dismiss the appeal in any other case.20 A miscarriage of justice means any error, irregularity or occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected, or which resulted in an unfair trial or a trial that was a nullity.21 Importantly, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.22 A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.23 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe” but that there is a real possibility the verdict would be unsafe.24
[38] Where an appellant argues that a Judge erred in their assessment of the evidence, the appeal proceeds by way of rehearing, and the appeal court is required to form its own view of the facts.25 If the appeal court comes to a different view than the trial Judge on the evidence, the appeal must be allowed.26 The appellant has the onus
19 Criminal Procedure Act 2011, s 232(2)(b) and (c).
20 Criminal Procedure Act, s 232(3).
21 Criminal Procedure Act, s 232(4).
22 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
23 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
24 At [110].
25 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575, at [26]–[32]. See also Austin, Nichols & Co Inc
v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
26 Sena v R, above n 25, at [38].
of showing that an error has been made. In assessing the evidence, the appellate court must recognise any benefits that the trial Judge may have had. Particularly, where a challenge is made to the credibility of findings based on contested oral evidence, the appellate court must exercise caution.27
Discussion
[39] Mr Hall has provided no evidence to support the argument that the Judge was biased, beyond the fact that the Judge’s decision did not fall in Mr Hall’s favour.28 To the contrary, Mr Murray submits the transcript shows the Judge assisting the self-represented appellant in promoting his case at several points. I agree that the transcript shows the Judge attempting to explain what was happening to Mr Hall and assist him at times during the hearing.
[40] There is no merit in the argument that the amendment of the charge amounts to a successful ground of appeal. The time limits imposed by the Criminal Procedure Act 2011 do not apply when an existing charge is amended, as was the case here.29 In any event, the amendment lowered the severity of the charge faced by Mr Hall.30
[41] Mr Hall suggested that if he had known that video recordings would be allowed as evidence at the trial, he would have brought evidence of other footage. Mr Murray confirmed that Mr Hall knew about the video footage before the trial, through disclosure. I also note there is no record of any objection or surprise by Mr Hall at the time this evidence was advanced at trial. I am satisfied that Mr Hall had the opportunity to bring such further evidence at trial, but simply did not do so.
[42] In his judgment, the Judge correctly set out the relevant legal principles, then set out the evidence of the two complainants, the remaining witness, and Mr Hall himself. The Judge correctly applied the tripartite direction,31 and rejected Mr Hall’s
27 At [38]–[40].
28 Saxmere Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3]–
[4]; Siemer v Heron [Recusal] [2011] NZSC 116; [2012] 1 NZLR 293 at [11].
29 Criminal Procedure Act 2011, s 25. Ihaia v R [2022] NZCA 599 at [58] and [59] which applies R
v Holt CA59,06, 30 May 2006 and Stewart v Police [2019] NZHC 2086 at [16]–[23].
30 He was originally facing a charge of threat to kill, with a maximum penalty of seven years’ imprisonment, in comparison to the charge of intimidation which has a maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.
31 R v McI [1998] 1 NZLR 696 (CA) at 708.
evidence, giving reasons for why he found Mr Hall not credible, and then went on to consider the remaining evidence. The complainants and the remaining witness all corroborate each other’s accounts of the events on the 17 June 2023. Further, there was video and audio evidence supporting the finding that Mr Hall threatened the second complainant. The Judge was entitled to dismiss Mr Hall’s evidence as unconvincing, based on the inconsistencies within his evidence, and his assessment of Mr Hall’s credibility. The Judge provided reasons for why he accepted the evidence of the complainants and the remaining witness, and concluded that each of the elements of the two charges were proved beyond reasonable doubt.
[43] In assessing the judgment as a whole, I am satisfied there was no error in the assessment of the evidence by the Judge, rather the verdict was reasonable. Nor has there been a miscarriage of justice for any other reason.
Appeal against sentence
Approach to appeal against sentence
[44] Mr Hall’s right of first appeal against his sentence arises under s 244 of the Criminal Procedure Act. Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material error in the sentence imposed and a different sentence should have been imposed. If these factors are not satisfied, the Court does not retain any discretion and must dismiss the appeal.32 Although s 250 does not use the expression “manifestly excessive”, it is a principle that is well-established in the Court's approach to determining the extent of the error in sentence appeals.33 It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.34 When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather
32 Section 250(3).
33 Ripia v R [2011] NZCA 101 at [15]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at
[32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].
34 Tutakangahau v R, above n 33, at [32]–[36].
than the process by which it was reached.35 The Court cannot ‘tinker’ with a sentence imposed where that sentence is nevertheless in range.36
Discussion
[45] As I have already mentioned, despite only formally appealing his conviction, Mr Hall did assert in the grounds of his notice of appeal that the sentence was unfair. He appears to argue it was unfair because there was only one incident but two charges (and therefore convictions).
[46] Despite the charges arising from one incident, there were very clearly two distinct instances of intimidation, against two complainants, justifying two charges rather than one.
[47] Mr Hall has not identified any error in the sentence. The sentence imposed was not manifestly unjust and was appropriate for the level of offending here.
Result
[48]To the extent there was an application to adduce further evidence, it is declined.
[49]The appeal against conviction and sentence is dismissed.
McQueen J
Solicitors:
Harbour Chambers, Wellington for Respondent
35 Larkin v Ministry of Social Development [2015] NZHC 680 at [26], citing Ripia v R above n 34. See also Tutakangahau v R above n 33 at [36].
36 Kay v R [2024] NZCA 1 at [36], citing R v Boyd (2004) 21 CRNZ 169 at [38].
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