Hapi v Police
[2023] NZCA 424
•6 September 2023 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA228/2023 [2023] NZCA 424 |
| BETWEEN | JORDAN NGA-POTIKI RICHMOND HAPI |
| AND | NEW ZEALAND POLICE |
| Court: | Wylie, Ellis and van Bohemen JJ |
Counsel: | Applicant in person |
Judgment: | 6 September 2023 at 10 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal against the rehearing decision of the District Court — [2022] NZDC 24926 — is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wylie J)
Introduction
The applicant, Jordan Hapi, seeks leave to bring a second appeal against a conviction entered against him for intentionally damaging the window of a police car, contrary to s 11(1)(a) of the Summary Offences Act 1981.
On 10 June 2021 Mr Hapi was found guilty of the charge by Judge Cameron in the District Court at Tauranga, notwithstanding that Mr Hapi had failed to appear at the hearing.[1] Mr Hapi was ordered to pay reparation of $350.75, being the costs of repairs to the police vehicle.
[1]Police v Hapi [2021] NZDC 11573 [the first hearing decision].
Mr Hapi was granted a rehearing. On this occasion he defended the charge. He was again found guilty by Judge Cameron. Mr Hapi was convicted, fined $300 and ordered to pay reparation of $350.75.[2]
[2]Police v Hapi [2022] NZDC 24926 [the rehearing decision].
Mr Hapi then filed an appeal with the High Court. The appeal was heard by Brewer J. It was dismissed.[3]
[3]Hapi v Police [2023] NZHC 742.
Mr Hapi now seeks leave to bring a second appeal against the rehearing decision pursuant to s 237(1) of the Criminal Procedure Act 2011. The application for leave to bring a second appeal is opposed by the Crown.
Factual background
Judge Cameron recounted the factual background to Mr Hapi’s offending in his sentencing notes following the rehearing decision. We gratefully adopt his summary:
[2] The allegation is that on 5 August 2020 while under arrest and sitting in the rear of a police patrol car the defendant deliberately smashed the left rear window of that vehicle. Constables Andrew and Prout gave evidence. Their common evidence was that they were on duty in a patrol car on the night of 5 August 2020. They were called to investigate a separate incident in Maketu in the Tauranga region and at about 9 pm that night they observed a black Honda SUV travelling towards them, but then doing a u-turn, which action they regarded as suspicious. The vehicle was stopped by police, with the patrol car parking behind the SUV and lighting the scene with its headlights. They went to the driver’s door, which had the window open but only to the extent of some five to 10 centimetres. The driver was the defendant, Jordan Hapi. He was asked to provide his driver’s details, including his licence, but refused. He was warned that it was an offence if he refused. He remained non-compliant.
[3] He was then arrested and was told to get out of the vehicle. He did not do so and was warned that police would smash the driver’s window to gain entry if he did not get out. He remained [non-compliant] so Constable Prout smashed the driver’s window and extricated the defendant. Prior to his removal from the vehicle, the evidence was that the defendant’s brother, Jacob, who was the other occupant of the vehicle, could be heard by police telling the defendant not to comply with the police directions stating “police work for us” or something similar.
[4] After the defendant was removed from the vehicle he was handcuffed with his hands behind his back and placed in the left rear passenger seat of the patrol car. The evidence was that the defendant’s brother, Jacob, became agitated and got out of the vehicle and aggressively confronted Constable Prout about what had occurred. The constables’ evidence was that Jacob and Constable Prout then engaged in a tussle which culminated in Constable Prout deploying his taser gun, but it was to no effect as Jacob was wearing baggy clothing. The evidence was that Jacob remained aggressive so Constable Andrew pepper sprayed him, which subdued him. He was also arrested.
[5] Constable Andrew’s evidence was that when dealing with Jacob she heard “a massive shatter of glass”. This transpired to be the smashing of the left rear passenger window of the patrol vehicle next to where the defendant had been placed. The evidence was that the defendant was the sole occupant of the vehicle at the time. After the defendant had been given his Bill of Rights by Constable Prout, the contemporaneous notes of the constable record that he asked the defendant why he had smashed the window of the patrol car. The answer the defendant gave was recorded as “because you tackled my brother.”
The Court decisions
The first hearing decision
As noted, Mr Hapi did not appear at the first hearing. The Judge nevertheless made an order that the trial should proceed in his absence.[4] Constables Andrew and Prout gave evidence. The Judge was satisfied that “[i]n all of the circumstances, the police have proved beyond reasonable doubt that it was the defendant who intentionally damaged the police window”.[5]
The rehearing decision
[4]Police v Hapi DC Tauranga CRI-2020-070-4502, 10 June 2021.
[5]The first hearing decision, above n 1, at [7].
As noted, Mr Hapi was granted a rehearing. He represented himself and he was accompanied by a McKenzie friend. Mr Hapi elected not to call or give evidence and he advised the Court from the outset that he would be appealing the decision. Both Constables Prout and Andrew gave evidence. Mr Hapi did not question Constable Prout. He did question Constable Andrew, but as the Judge noted, most of the questions had no direct relevance to the issues at trial.[6]
[6]Rehearing decision, above n 2, at [6].
The Judge concluded that the Constables had acted lawfully and without excessive force when dealing with Mr Hapi and his brother.[7] The Judge found that Mr Hapi had deliberately damaged the window in the police car by kicking it from inside the vehicle. The Judge noted that even if Mr Hapi had smashed the window out of frustration with the police officers’ handling of his brother, this was no defence to the charge. He recorded that, in any case, there was no evidential foundation for any suggestion that Mr Hapi’s actions were in defence of his brother. He found Mr Hapi guilty of the charge of wilful damage and sentenced him as noted above at [3].
The High Court appeal
[7]At [7].
Mr Hapi appealed his conviction to the High Court. He was again assisted by a McKenzie friend. Brewer J noted that the McKenzie friend initially refused to give his surname. The Judge made it clear that a person could not be a McKenzie friend without first identifying himself, at which point the McKenzie friend gave the name “Webb”.[8] The Judge also recorded that it became very clear that the submissions Mr Hapi was making before him were Mr Webb’s submissions, and not his own.
[8]Hapi v Police, above n 3, at [17].
The Judge considered whether Judge Cameron erred in his assessment of the evidence to such an extent that there had been a miscarriage of justice, or whether, for any other reason, a miscarriage had occurred. Brewer J was clear in his view that Judge Cameron was entitled to enter the conviction.[9] He noted that the evidence of the police officers was uncontradicted and that it was to the effect that while lawfully detained, Mr Hapi intentionally damaged the police vehicle. Brewer J noted that Judge Cameron was alive to Mr Hapi’s assertion that he kicked out the window because he was concerned for his brother. However Brewer J noted that Judge Cameron had found that there was no evidential foundation for any assertion that Mr Hapi’s actions were in defence of his brother and that, in any event, that defence had not been relied upon by Mr Hapi at trial.[10] Brewer J considered that Judge Cameron was entitled to so conclude.[11]
[9]At [25].
[10]At [26].
[11]At [27].
Brewer J considered that there was no evidential foundation for the appeal grounds raised by Mr Hapi and accordingly, he dismissed the appeal against conviction. He went on to record that the notice of appeal could perhaps be construed as also encompassing an appeal against sentence. He noted that this issue had not been advanced by Mr Hapi, but, for completeness, he commented that there could be no suggestion that the sentence imposed was manifestly excessive. He dismissed any appeal against sentence as well.[12]
Submissions
[12]At [31].
Mr Hapi’s proposed grounds of appeal are difficult to discern.
In his notice of appeal, Mr Hapi argued that his representative — we assume his McKenzie friend, Mr Webb — was denied the ability to “litigate and mediate on [his] behalf”, and that had Mr Webb been able to litigate, this “may have resulted in a fair questioning of all witnesses”. He asserted that Mr Webb was “coerced by verbal threats of violence by Brewer J and subject to presumptuous misleading misrepresentation known as a ‘Mr Webb’ knowing full-well that this is a presumption of law”, and, in Mr Hapi’s view, an “abuse of power etc.” Mr Hapi suggested that a resulting constructive trust was created and that unbeknown to him, he was made a trustee indirectly by Brewer J, without ever signing a deed of trust. He also argued that his brother was “traumatised”, and the statements made by the police were “fabricated to cover up the handling” of his brother and the “abusive nature” of the actions taken by the police. He argued that the police had manufactured a false narrative.
Mr Hapi filed an affidavit, dated 9 June 2023. The affidavit does not address anything of relevance to the proposed appeal. Rather it makes broad allegations of fraud and slavery by various public authorities in New Zealand and it refers to “an unconstitutional regime New Zealand Government Property Corporation”. There is nothing in the affidavit which could assist Mr Hapi in his proposed appeal.
In a further document headed “Notice of Opposition”, dated 17 July 2023, Mr Webb, presumably on behalf of Mr Hapi, raises a host of issues. They are difficult to understand. There is reference to a vehicle seizure and “impoundment” notices, to various alleged “tort violations”, to a notice of police bail, to a driver’s license, to a charging document and to a number of statutes, none of which advance the proposed appeal. The document appears to challenge the sovereignty of Parliament and the jurisdiction of the District and High Courts.
The respondent’s argument are more succinct. It argues that Mr Hapi’s proposed appeal raises no arguable grounds, that it does not involve a matter of general public importance and that there is no risk of any miscarriage of justice.
Analysis
Mr Hapi’s first appeal was to the High Court. Any further appeal will be to this Court. Pursuant to s 237 of the Criminal Procedure Act, Mr Hapi requires the leave of this Court before he can bring a second appeal against the District Court’s rehearing decision. Section 237(2) provides that this Court must not give leave for a second appeal unless it is satisfied that:
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
The threshold is high.[13]
[13]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
The matters which Mr Hapi seeks to raise on appeal, to the extent we understand them, do not involve any matter of general or public importance.
Mr Hapi wishes to take issue with Brewer J denying his McKenzie friend, Mr Webb, “the ability to litigate and mediate on [his] behalf”. There is no merit in this argument. A McKenzie friend has no entitlement to address the Court.[14] Rather a McKenzie friend is there to assist the litigant in person. If Mr Hapi’s complaint is that Mr Webb was denied the opportunity to actively advocate for him at the hearing, that argument simply cannot succeed. In any event, it is clear from his decision that Brewer J read the written submissions that had been prepared by Mr Webb and he expressly allowed Mr Hapi the opportunity to discuss his oral submissions with Mr Webb during the course of the hearing.[15]
[14]R v Hill [2004] 2 NZLR 145 (CA) at [48]; and Faulkner v Trustees of Allotment 5 Parish of Tahawai [2011] NZCA 196, at [2].
[15]Hapi v Police, above n 3, at [18]–[19].
Mr Hapi also notes that his brother pleaded guilty to the charges laid against him. The circumstances in which Mr Hapi’s brother pleaded can have no bearing on the case against Mr Hapi and the proceedings against Mr Hapi’s brother played no part in the reasoning of either Judge Cameron or Brewer J.
The challenges to the sovereignty of Parliament and to the jurisdiction of the courts in New Zealand cannot succeed.[16] Mr Hapi was convicted and sentenced by the District Court following the application of well-settled legal principles to facts which were not disputed. We are not satisfied that the proposed appeal raises any issue of general or public importance.
[16]Brooker v R [2014] NZCA 436 at [4]; Yates v R [2019] NZCA 155 at [8]–[9]; and Wallace v R [2011] NZSC 10, at [2].
Further there is no prospect that justice has miscarried. It is patently clear on the uncontradicted evidence that Mr Hapi intentionally damaged the police vehicle while he was lawfully detained. While Mr Hapi appears to now suggest that he was acting in defence of his brother, both the District Court and the High Court on appeal were correct to find that there was no evidential foundation for this defence. It was not, as a matter of law, available to Mr Hapi and it could not have been a defence to the charge.
The fine imposed and the reparation ordered cannot be said to be manifestly excessive and, in any event, Mr Hapi has not sought leave to bring a second appeal in relation to the sentence imposed, as required by s 253(1) of the Criminal Procedure Act.
For all of these various reasons, we decline Mr Hapi’s application for leave to bring a second appeal against the District Court’s rehearing decision.
Result
The application for leave to bring a second appeal against the rehearing decision of the District Court — [2022] NZDC 24926 — is declined.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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