JIMMY REX PARKER AND THE KING
[2024] NZHC 2918
•8 October 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2024-463-0071
CRI-2024-463-0086 [2024] NZHC 2918
BETWEEN JIMMY REX PARKER
Applicant
AND
THE KING
Respondent
Hearing: On the papers Appearances:
Applicant in person
E S R O’Brien for respondent
Date of judgment:
8 October 2024
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 8 October 2024 at 4.00pm.
………………………… Registrar/Deputy Registrar
Solicitors:
Pollett Legal, Tauranga
Copy to:
Applicant
PARKER v R [2024] NZHC 2918 [8 October 2024]
[1] Mr Parker seeks extensions of time to appeal his January and March 2021 convictions,1 respectively for wilful damage and intimidation.2
Background
[2] Appeals are to be filed within 20 working days after sentence, unless time to appeal is extended.3 The appeals were filed in June 2024. Moore J directed Mr Parker file applications for extension of time and affidavit(s) in support.4 The applications and appeals were allocated for my hearing on 17 September 2024.
[3]I explained in a subsequent minute:5
… Mr Parker has filed nothing to explain, as Moore J directed:6
… why Mr Parker did not file his appeal within the 20 working days limit and also why it has taken approximately three years for him to file his notices of general appeal.
The only apparently relevant aspects of Mr Parker’s filed affidavit sworn 5 August 2024 is his advice:
The witness kept the [issue] going for years until he was taken to court and I was [a]warded a restraining order for my and my family’s safety.2022 - 2023 also listed as a hate crime by police.
accompanied by a copy of the restraining order, and he “had a head injury which took years to get past which also [a]ffected [his] mental health”, accompanied by a photograph of the top of his head with a handwritten indication of the location of a “head injury” at his hairline. His 24 August 2024 application for an extension of time states “I was injured by the witness and suffered four years” and “On going harassment by the witness affecting my mental health”. Otherwise both affidavit and application repeat his grounds for appeal.
On that sparse basis, Mr Parker almost certainly would not be granted any extension of time within which to appeal. As Moore J already had indicated:7
It is impossible for any appellate court to review Mr Parker’s explanations for lateness and delay without a more detailed description of what his infirmities were and how they operated to
1 New Zealand Police v Parker [2021] NZDC 3403 (the wilful damage conviction); New Zealand Police v Parker [2021] NZDC 26180 (the intimidation conviction).
2 Summary Offences Act 1981, ss 11 (wilful damage) and 21 (intimidation).
3 Criminal Procedure Act 2011, s 231.
4 Parker v New Zealand Police CRI-2024-463-0071 HC Rotorua, 26 July 2024 (Minute of Moore J).
5 Parker v New Zealand Police CRI-2024-463-0071/0086 HC Rotorua, 13 September 2024 (Minute of Jagose J), at [4]–[10].
6 Minute of Moore J, above n 4, at [19].
7 At [25].
frustrate his ability to file his notices of appeal in a more timely way. That is the why he needs to file evidence on the point.
The parties’ use of a full day’s hearings in circumstances of that inevitability, with all that means for other parties competing for this Court’s scarce resource, is irresponsible.
Further, Moore J also directed provision of the District Court’s notes of evidence.8 As a result of the 28 August 2024 case management conference, the parties were to update their submissions to address those notes of evidence. Tahana J directed Mr Parker file such submissions by 10 September 2024.9 None is apparent.
For those reasons, I consider next week’s hearings of Mr Parker’s appeals should be vacated.
Further, Mr Parker’s applications for extension of time to appeal should be determined first and separately. They necessarily will turn on any evidence he can file of what prevented him filing the appeals within time — that is, specifically, in relation to Judge Cameron’s 14 January 2021 decision, something arising before 12 February 2021, and in relation to Judge Bouchier’s 17 March 2021 decision, something arising before 20 April 2021 — and how it prevented him from filing the appeals by those latter dates. I will afford Mr Parker one final opportunity to put before the Court any substantive evidence of that nature.
If Mr Parker seeks to rely on head injury, he will need to provide explicit evidence of when it was sustained and of its consequences for his decision-making. I expect that will be medical evidence, at least from his general practitioner, advising of the date of the injury’s occurrence and its impact on Mr Parker. If it is on a witness’ conduct, he will need to be specific as to what that conduct was, when it occurred and how it prevented him from filing his appeals within time. Any other evidence relied on for extensions of time will need to be as specific.
As evidential, the applications for extensions of time do not require argument. Once filed and served, and any response made by the prosecution, I will decide the applications on the papers. If time is extended, I will then allocate a time for hearing the appeals.
[4] Despite my minute, Mr Parker has not since filed any evidence in support of his applications. Instead he simultaneously filed three separate memoranda, two dated 8 September 2024 and one dated 17 September 2024, each contending for slightly different causes of delay, none of which is evidenced. A fourth memorandum dated 8 October 2024 repeated some of the foregoing. The last also contended “the Crown Solicitor and I reached an agreement that my placement in the witness box under oath would suffice to address any concerns raised by the Crown”. But the Crown’s
8 At [27].
9 Parker v New Zealand Police CRI-2024-463-0071 HC Rotorua, 28 August 2024 (Minute of Tahana J) at [5(b)].
opposition expressly submits “the evidential requirements set out by Moore J and Jagose J remain unfulfilled”.
Approach to extensions of time
[5] I may extend the time allowed for filing a notice of appeal against conviction.10 In determining if to grant an extension, “[t]he touchstone is the interests of justice in the particular case”,11 balancing the general interest in finality of decisions against the particular interest claimed by the applicant.12 Relevant factors to be taken into account:13
… include whether the delay is adequately explained and whether there are compelling reasons to extend time. In considering whether to grant the application, the Court may have regard to the seriousness of the charges, the strength of the proposed appeal, the impact on others and prejudice to the Crown. Also relevant is whether fresh evidence has come to light.
Discussion
[6] Mr Parker now asserts his reasons for delay are the absence from Te Tiriti o Waitangi of any strict time limit on redress, the Crown’s failure to stipulate time for the bringing of his appeals and his substantive claim to breach of his legal rights. He says the proceedings’ lack of respect for Te Tiriti degrades Māori rights and cultural integrity. In relation to CRI-2024-463-0086 specifically, he separately submits the delay in its filing was due to the complexity of the legal and factual issues requiring extensive time for review and preparation of comprehensive appeal, his “ongoing health issues resulting from the injuries sustained during the incident” affecting his ability to address those complexities in a timely manner and his lack of knowledge of the limited appeal period. In a separate submission again, also specifically in relation to CRI-2024-463-0086, he says his conviction caused him to lose his mana “as a Tainui and Ngāpuhi spirit and as an elder”. Still, all is assertion; none is evidenced.
10 Criminal Procedure Act, s 231(3).
11 R v Knight [1998] 1 NZLR 583 (CA) at 587, affirmed in Ellis v R [2019] NZSC 83 at [15].
12 Kriel v R [2024] NZCA 45 at [79]–[86], citing R v Knight, above n 11, and R v Lee [2006] 3 NZLR 42 (CA).
13 Ellis v R, above n 11, at [15] (footnotes omitted).
[7] To condense Mr Parker’s submission, it is to claim — in reliance on Te Tiriti, and his status as tangata whenua thereunder — he should not be constrained by the statutory time limit for commencing an appeal against his contended unfair convictions. But the charges are not significantly serious in their own right, as Judge Bouchier noted by reference to “the fairly minor nature” of the intimidation charge.14 Mr Parker’s contentions of the Judge’s errors and discrepancies and falsity in witnesses’ statements do not appear strong in respect of her Honour’s assessment of all witnesses’ (including Mr Parker’s) credibility in finding the intimidation charge’s essential elements proved beyond reasonable doubt.15 Neither are they strong in light of Judge Cameron’s similar assessment in finding the wilful damage charge so proved, including specifically finding Mr Parker “was deliberately changing his evidence in Court to try and achieve consistency in his narrative” to the extent the Judge rejected his evidence entirely.16 Those are shifts in emphasis also evident in Mr Parker’s approach to an extension of time.
[8] If Mr Parker’s application for an extension of time was successful, the appeals’ conduct would add significantly to the Crown’s burden and may engage its witnesses in further trial well after the events in question, with attendant risks to recollection. No evidence is tendered in support of the applications for extension of time, whether or not fresh.
[9] None of that, collectively or individually, is sufficient to unbalance the general interest in finality of litigation now over three years old. Mr Parker’s delay remains inadequately explained; neither does he establish any compelling reason to extend time. Time to appeal his convictions will not be extended.
Result
[10]The applications are dismissed.
—Jagose J
14 New Zealand Police v Parker (the intimidation conviction), above n 1, at [26].
15 At [23]–[24].
16 New Zealand Police v Parker (the wilful damage conviction), above n 1, at [5].