Hapi v Police
[2023] NZHC 742
•4 April 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-162
[2023] NZHC 742
BETWEEN JORDAN NGA POTIKI HAPI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 April 2023 Appearances:
Appellant in person
J L Manera for Respondent
Judgment:
4 April 2023
JUDGMENT OF BREWER J
This judgment was delivered by me on 4 April 2023 at 3.30 pm
Registrar/Deputy Registrar
Solicitors:
Pollett Legal (Tauranga) for Respondent
HAPI v POLICE [2023] NZHC 742 [4 April 2023]
Introduction
[1]Mr Hapi appeals his conviction on a charge of wilful damage.
[2]There is some procedural complexity which I will describe.
[3] The charge of wilful damage arose from an incident which occurred on 5 August 2020 during which Mr Hapi kicked out a window in a police car.
[4]Mr Hapi has at all times represented himself.
[5] The case was first set down for a defended hearing on 2 June 2021. Mr Hapi failed to appear and a warrant was issued for his arrest. Mr Hapi made a voluntary appearance on 4 June 2021, at which time the arrest warrant was withdrawn and the trial rescheduled for 10 June 2021.
[6] Mr Hapi did not appear on 10 June 2021 and Judge IDR Cameron proceeded to hear the evidence in his absence. The Judge entered a conviction.1
[7] Subsequently, Mr Hapi applied for a rehearing and this was granted. The rehearing proceeded on 21 November 2022, again before Judge Cameron. There were two police witnesses. One was cross-examined by Mr Hapi and the other was not. Mr Hapi elected not to give or call evidence. He was again convicted.2
Factual background
[8] The evidence of the two police officers was that on the evening of 5 August 2020 they were on duty in uniform in a marked patrol car. They saw a vehicle do an unexpected three-point turn in front of them so they followed the vehicle and stopped it in order to check the details of the driver.
[9]Mr Hapi was the driver of the vehicle and his brother was the passenger.
1 Police v Hapi [2021] NZDC 11573.
2 Police v Hapi [2022] NZDC 24926.
[10] Mr Hapi refused to give his identification details. His brother was verbally aggressive and was encouraging Mr Hapi not to show his driver’s licence or identify himself. The police officers warned Mr Hapi that if he did not provide his details they would arrest him and for that purpose would break the side window of his car so they could unlock the door. Mr Hapi was still uncooperative and so the police broke the window, opened the door and arrested Mr Hapi. Mr Hapi did not resist. However, his brother was being aggressive and confrontational.
[11] The two police officers handcuffed Mr Hapi and put him in the back of the police vehicle.
[12] The confrontation between the brother and one of the police officers got to the point where the male police officer used his taser, but to no effect. The female police officer used pepper spray and this subdued the brother, who was also arrested.
[13] While this confrontation was in progress the officers heard the sound of breaking glass and, on turning to the police car, found that Mr Hapi had apparently kicked out the left rear window of the vehicle. Mr Hapi was given his rights under the New Zealand Bill of Rights Act and was asked why he had broken the window. His answer was, “because you tackled my brother”.
[14] Mr Hapi’s cross-examination of the female police officer was discursive and did not helpfully address the elements of the offence.
The appeal
[15] Written submissions for Mr Hapi were filed on 13 March 2023. Some of the submissions relate to the trial process:
2.Firstly, I allege that [Constable Andrew] committed perjury while under oath and on the stand, giving her testimony, surrounding the events that transpired on the 8th August 2021. Just to note I am claiming that the so called wilful damage was due to the concern and lawful defence surrounding the physical assault of my brother Jacob Hapi by [Constable Prout] while [Constable Andrew] help to physically subdue Jacob.
3.At this court may find in evidence present and to be requested, [Constable Andrew’s] testimony and her original statement are
inconsistent and in conflict with my Affidavit. This is I allege to cover up the Police conduct abuse of power leading to a physical arrest physically assaulting me and my brother Jacob Hapi.
4.I allege that while [Constable Andrew] “under-oath” was giving her version of events she appeared to have been looking at two officers sitting directly behind me and my representative, believing that the said officers were signalling in code, and using facial expressions to [Constable Andrew] and guiding her in her testimony, making her (i) an incompetent witness; (ii) interfering with the testimony of the sworn officer leading to speculate that the officer in question was either lying or could not remember the account of events that lead to my arrest and charges.
5.I allege that [Constable Prout] and [Constable Andrew] purposely pulled me and my brother who witnessed the events that transpired that night and who is willing to testify the same.
[16] The rest of the submissions are a mixture of some of the theories that are only too frequently raised in cases such as this. For example:
6.I further allege that what had transpired on the night was a breach of my common law rights, bill of rights, privacy rights and customary rights a choice I made clear to [Constable Prout] and [Constable Andrew] as seeing that I was on my whenua protected under and by the Crown protectorate.
…
9. By discovery and being a well establish fact that and by operation of
law a Trust (also known as either a Resulting Trust resulting from the charges laid by the Police prosecutor) or otherwise a Constructive
Trust for which both types of trusts are implied) was created as a result again, from an application made by the Papamoa police through the Police prosecutor to bring about this Trust in order to leverage a original c’estui que vie trust.
…
12.However, the Judge (Judge Cameron) acting as executor of this Trust, for which I believed coerced me into accepting that the derivative was me, and by receiving various mail by the registrar of the court, adding the word “Mr” the court coerced me into believing that I held a official position in and under that resulting or otherwise constructive trust or otherwise c’estui que vie trust.
[17] Mr Hapi was assisted at the appeal before me by a McKenzie Friend who initially refused to give other than his first name. He eventually gave his surname as “Webb” when I made it clear that he could not be a McKenzie Friend without identifying himself.
[18] Thereafter, it became very clear that the submissions Mr Hapi was giving were Mr Webb’s submissions and not his own. Mr Hapi accepted this was so and I told him I would take the written submissions as having been read.
[19] I asked Mr Hapi whether he had any submissions of his own to make as to why the Judge was wrong to find that Mr Hapi had intentionally damaged the police vehicle by kicking out the window. I allowed Mr Hapi to leave the courtroom with his McKenzie Friend to discuss any further submissions. Unfortunately, upon their return after some 10 minutes, Mr Hapi read notes that had clearly been provided for him by Mr Webb.
[20] I explained to Mr Hapi that this was his opportunity to simply tell me where the Judge had gone wrong. His response was:
The only reason I done that was because of my brother. I thought he was going to be shot. My first option was to kick out the window and get to him.
[21]Mr Hapi told me that he wants a retrial before a jury.
Decision
[22] My task3 is to consider whether Judge Cameron erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or whether for any other reason a miscarriage of justice has occurred. Otherwise, I must dismiss the appeal.
[23]“Miscarriage of justice” is defined as:4
… any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
3 Criminal Procedure Act 2011, s 232.
4 Section 232(4).
[24] The evidence against Mr Hapi has been called twice before Judge Cameron. On the second occasion, Mr Hapi had the opportunity to cross-examine the two police officers involved and to give evidence himself.
[25] It is clear that the Judge was entitled to enter the conviction. The evidence of the police officers was uncontradicted and to the effect that while lawfully detained Mr Hapi intentionally damaged the police vehicle.
[26] Judge Cameron was alive to Mr Hapi’s position that he kicked out the window because he was concerned for his brother. However, the Judge found there was no evidential foundation that Mr Hapi’s actions were in defence of his brother, and in any event that was not relied upon by Mr Hapi at his trial:
[6] The defendant elected not to give evidence or to call any evidence. Instead, he simply advised the Court that he would be appealing the anticipated decision. He also elected not to question Constable Prout at all. By contrast, he did cross-examine Constable Andrew for a considerable period of time, mainly with questions that had no direct relevance to the issues in this trial. Towards the end of his questioning of Constable Andrew he asked her whether she had thought “I was smashing my window out of concern for the safety of my brother?” This question from the defendant points to the defence being not that the defendant did not deliberately smash the window, but that he did so because of the police actions in relation to his brother, Jacob. This is also consistent with Constable Prout’s notebook entry of the defendant’s explanation for smashing the window, namely that it was because of police actions against his brother.
[7] Having heard the evidence from the constables, I conclude that both Constable Andrew and Constable Prout acted lawfully and without excessive force in dealing with the defendant’s brother and in dealing with the defendant. Indeed, the defendant in his questioning of Constable Andrew did not suggest otherwise.
[8] I further find that the defendant did damage the window concerned by kicking out the window from inside the patrol car, which is consistent with the evidence that the majority of the glass was found on the ground outside the vehicle and the fact that the defendant had been handcuffed with his hands behind his back. I accept the evidence of both Constable Andrew and Constable Prout as to the incident and I have no doubt that the defendant deliberately smashed the patrol car window. Indeed, the defendant himself appeared to accept this. Even if the defendant smashed the window out of frustration with the police handling of his brother, Jacob, that is no defence to the charge. For completeness, I record that there is no evidential foundation that the defendant’s actions were in defence of his brother and, not surprisingly, self-defence is not relied on.
[27]The Judge was entitled to reach these conclusions.
[28] I acknowledge that Mr Hapi is self-represented and that had he been legally represented he might well have been able to be more effective in his defence than he was. But that does not go to a miscarriage of justice in these circumstances.
[29]There is no evidential foundation for the appeal grounds I quote at [15].
[30]The appeal against conviction is dismissed.
[31] The notice of appeal could be construed as encompassing an appeal against sentence. However, that was not advanced by Mr Hapi, and in any event the only penalty imposed on him, other than the entry of a conviction, was a fine of $300. Mr Hapi was also directed to pay reparation for the broken window in the sum of $350. There could be no argument that this was manifestly excessive.
[32]The appeal against sentence is dismissed.
Brewer J
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