Kolo v Police
[2024] NZHC 2478
•30 August 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000167
[2024] NZHC 2478
BETWEEN TUPAI KOLO
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 June 2024 Appearances:
Appellant in Person
J Bragg for the Respondent
Judgment:
30 August 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 30 August 2024 at 12 pm Registrar/Deputy Registrar
Solicitors:
J Bragg, Kayes Fletcher Walker, Manukau Crown Solicitor
Copy to: Tupai Kolo
KOLO v POLICE [2024] NZHC 2478 [30 August 2024]
Introduction
[1] Tupai Kolo was found guilty of refusing to accompany an enforcement officer,1 refusing to undergo a compulsory impairment test,2 and possession of cannabis,3 following a Judge-alone trial before Judge N Tahana in the Manukau District Court.4 Judge Tahana declined to discharge Mr Kolo without conviction and sentenced him to a total of 100 hours’ community work and disqualification from driving for six months. Mr Kolo was convicted and discharged on the charge of refusing to accompany an enforcement officer.5
[2] Mr Kolo appeals his conviction. He contends that he was unlawfully searched, detained, and assaulted by the attending police officers, and alleges police fabricated evidence to falsely incriminate him. Mr Kolo also maintains that his trial was unfair because of procedural and substantive errors leading to a miscarriage of justice. Finally, he argues that the Judge erred by not granting him a discharge without conviction when the consequences are out of all proportion to the gravity of the offending.
[3] The respondent’s position is that the appeal should be dismissed in the light of logical, consistent, and generally corroborative evidence from the two attending police officers and a defence case which was not supported by evidence.
[4] Mr Kolo represented himself at trial and on appeal. He presented generally cogent submissions on his own behalf in respect of the appeal notwithstanding his assertion that he did not speak “New Zealand English”’ or “te reo Māori”. In conjunction with his appeal, he filed a ‘counterclaim’ seeking damages against the police. Properly, Mr Kolo accepted that such a claim was outside of the scope of an appeal against conviction and sentence.
1 Land Transport Act 1998, s 59(1)(b) — maximum penalty $4,500 fine.
2 Land Transport Act 1998, s 60(1)(d) — maximum penalty three months’ imprisonment or $4,500 fine and a mandatory minimum of six months’ disqualification from holding a driver licence.
3 Misuse of Drugs Act 1975, ss 7(1)(a) and (2) — maximum penalty three months’ imprisonment and/or $500 fine.
4 New Zealand Police v Kolo [2024] NZDC 227 [Conviction decision].
5 New Zealand Police v Kolo [2024] NZDC 8769 [Sentencing notes].
Further evidence
[5] He sought however to refer to an affidavit which I apprehend was originally intended to support his claim to damages (although this was not completely clear).6 I explained that he needed leave to rely on this material on his appeal. The overarching test for adducing further evidence on appeal is whether it is in the interests of justice. If it is both cogent and fresh, it generally would be admitted.7 The Crown, pragmatically, did not resist Mr Kolo’s introduction of this material although it was neither cogent nor fresh. While adducing it on an appeal is unorthodox in those circumstances, I grant leave.
Background
[6] On 3 June 2022, Mr Kolo was stopped by police at a compulsory roadside checkpoint. He repeatedly refused to undertake a passive screening breath test and accompany the attending police officer to a bus set up to carry out breath alcohol testing and processing, colloquially known as the “booze bus”.
[7] Given Mr Kolo’s non-compliance and failure to co-operate, he was removed from his car by two police officers. Those attending police officers later described at trial how, upon removal from the car, he became “limp” and “dead weight”.8
[8] Mr Kolo was then arrested and taken to the bus. He was searched. Police located a chewing gum container in his pocket containing a leaf product identified by the attending officers as cannabis. Mr Kolo denied it was his and asserted that police must have planted it.
[9] After speaking to a lawyer Mr Kolo agreed to an evidential breath test. The test recorded a zero-alcohol result. The police say that due to Mr Kolo’s behaviour, which they described as “agitated”, “fidgeting” and “aggressive”, they required him to undergo a compulsory impairment test.9 He refused.
6 Affidavit affirmed at the Auckland High Court on 9 April 2024.
7 Criminal Procedure Rules 2012, r 8.8; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; and Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
8 Police v Kolo [2024] NZDC 227 at [12] and [18].
9 At [14].
[10]Those events resulted in the charges which are the subject of this appeal.
Appeal against conviction
District Court decision
[11] The prosecutor called the two attending police officers to give evidence. They were both cross-examined. Mr Kolo elected not to give or call evidence.
[12] Judge Tahana prefaced her oral decision with orthodox observations about the proper approach to her fact-finding task.10
[13] She determined that Mr Kolo had refused to accompany the policer officers to a required place.11 She accepted the police evidence that he was non-cooperative and behaving in an agitated, aggressive, and non-compliant way. For the same reasons she determined that Mr Kolo had refused to undergo the compulsory impairment test. She also accepted the evidence of the experienced senior attending police officer that the chewing gum container was found on Mr Kolo’s person and that it did contain cannabis. Judge Tahana relevantly noted that this officer had spent close to 15 years on the Auckland impairment prevention team, responsible for conducting checkpoints to detect drivers under the influence alcohol or drugs (or any other reason). She also recorded that the evidence of both attending police officers was largely consistent.
[14] For these reasons, Judge Tahana confirmed that each of the charges was proven beyond reasonable doubt.
Approach on appeal
[15] An appeal against conviction following a Judge-alone trial must be allowed if I am satisfied the Judge has erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred
10 Police v Kolo [2024] NZDC 227 at [8]–[9].
11 The initial attending officer (who had only been a police officer for six months at the time of the incident) requested assistance from a more senior constable once she began having difficulties with Mr Kolo while he was still in his vehicle.
for any other reason.12 Otherwise I must dismiss the appeal.13 A miscarriage of justice means “any error, irregularity, or occurrence in or in relation to or affecting the trial” that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.14
[16] The Court’s focus is upon errors of substance rather than inconsequential errors or errors immaterial to the outcome of the trial.15
[17] The standard principles in Austin, Nichols & Co Inc v Stichting Lodestar apply to appeals from Judge alone trials.16 If the appellate court comes to a different view on the evidence, the trial Judge necessarily will have erred, and the appeal must be allowed.17 But it is for the appellant to show that an error has been made.18 The Court must remain mindful in this respect of any advantages that the trial Judge may have had and exercise the customary caution where the challenge is to credibility findings based on contested oral evidence.19
[18] An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.20 To the extent that the appeal relates to the court's weighing of consequences of conviction against gravity of offending, the appeal proceeds by way of rehearing. The sentence appeal requires the appellant to demonstrate that there was a material error in the sentence imposed and that a different sentence should be imposed.21
Grounds for appeal
[19] Mr Kolo raises multiple grounds of appeal which can be conveniently analysed as challenges to the lawfulness of the searches. Essentially, Mr Kolo submits he was
12 Criminal Procedure Act 2011, s 232(2).
13 Section 232(3).
14 Criminal Procedure Act, s 232(4).
15 Wiley vR [2016] NZCA 28, [2016] 3 NZLR 1 at [47].
16 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
17 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
18 At [38].
19 At [38].
20 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]; Ovtcharenko v Police
[2017] NZCA 65 at [5].
21 Criminal Procedure Act 2011, s 250.
subjected to multiple unlawful searches without consent, warrant, or reasonable cause, including his forcible removal from his vehicle and subsequent searches conducted in the police “booze bus”, whilst handcuffed.
[20] As noted, Mr Kolo maintains the substance was planted by the attending police officers. He submits they refused to show him the contents of the container, which elevated his concerns.
[21] In terms of fairness of trial process, Mr Kolo questions the credibility of the police officers as prosecution witnesses. He contends that the fact that both police officers (senior and junior) were present inside the courtroom while they gave their respective evidence raises integrity issues because it tainted their evidence. He suggests that police presence and interaction with security guards around the court room unsettled him. He highlights inconsistencies as to the timing of him receiving his rights under the New Zealand Bill of Rights Act 1990 (NZBORA) and in the junior officer’s assessment of the evidence relating to the cannabis.
[22] Finally, Mr Kolo is critical of his lack of opportunity to make a closing submission which he maintains impacted the fairness of the trial.
Determination
[23] Whilst acknowledging that a courtroom may present an unfamiliar and uncomfortable environment for a self-represented defendant, the matters about the unsettling police presence in and around the courtroom do not present any risk that the trial was unfair. I put those peripheral matters to one side.
[24] The respondent acknowledges that the evidence is unclear as to exactly how many searches occurred and of what type. Ms Bragg, for the respondent, explains that there was a first roadside search which was only a precursory pat-down, due to Mr Kolo’s non-compliant manner. At least one further and more thorough search was undertaken on the “booze bus”; this included the process of locating Mr Kolo’s phone on his person so that he could call a lawyer.
[25] Ms Bragg submits that the search on the bus was initiated under the continued authorisation of ss 85 and 86 of the Search and Surveillance Act 2012 (SSA), because of the cursory nature of the first search. She maintains that this authority includes the putting of a hand in a pocket and the opening of the chewing container found in that pocket in the circumstances.
[26] I agree that the police were authorised to conduct the stop and to require Mr Kolo to undertake the relevant tests.22 The authority in the Land Transport Act 1998 is about public road safety and efforts to stem New Zealand’s appalling road toll. This was a routine stop at a compulsory checkpoint. There is no evidence to suggest that the officers acted outside the purpose of the Act or in bad faith.
[27] The permissible scope of a rub-down search is set out in s 85(2) of the SSA. It is not confined to a pat-down of outer clothing. The arresting or detaining officer may rub their hand over inner clothing or inside pockets. In the circumstances of Mr Kolo’s behaviour upon arrest, it is immaterial that the initial roadside search was only precursory. The realities of the policing situation and safety considerations are relevant. I accept Ms Bragg’s submission that the more thorough rub-down search occurred on the bus after Mr Kolo received his rights under NZBORA. I also accept that this search occurred under the continued authority of s 85 of the SSA. I find that there is no basis to say that, faced with Mr Kolo’s non-compliance, the attending police officers carried out their duties in anything other than a proper and reasonable manner. There is no cogent challenge to the discovery of cannabis on his person.
[28] There is also no basis to assert that the officers colluded to give consistent evidence or that their evidence was tainted. There were differences of peripheral detail recorded in the notes of evidence which tell against that contention. The allegation of collusion is a serious one. It was not put to the witnesses. There is nothing to suggest that Mr Kolo asked for a witness exclusion order or raised the issue with the Judge. The trial Judge was in the best position to gauge witness credibility. There is no basis on which to doubt her assessment.
22 New Zealand Police v Kolo, [2024] NZDC 13081 [Pre-trial ruling of Judge N Tahana on s 147 application].
[29] With regard to Mr Kolo’s submission on the matter of being unable to give a closing submission, neither prosecution nor defence have a right to make a closing address in a Judge alone trial23. Mr Kolo did not ask to do so before the Judge issued her oral judgment.
[30]Accordingly, the conviction appeal fails.
Appeal against refusal to grant discharge without conviction
[31] I turn to the appeal against the Judge’s decision declining Mr Kolo’s application to be discharged without conviction.
[32] The grounds advanced by Mr Kolo before Judge Tahana were two-fold; firstly, a challenge to the fairness of the Judge-alone trial process, specifically the lack of opportunity afforded to him to give a closing address24; and secondly, on the basis that the convictions (particularly the cannabis conviction) would have a detrimental effect on all facets of his life. I have already determined that the first ground has no merit.
[33] The threshold test for discharge without conviction requires that the direct and indirect consequences of conviction are out of all proportion to the gravity of the offences.25 The proportionality test is a question of fact.26 An assessment is made in accordance with a three-step approach which considers the gravity of the offending (including aggravating and mitigating features personal to the offender); the direct and indirect consequences of a conviction; and whether those consequences are out of proportion to the gravity of the offence.27 The applicant must demonstrate there is a real and appreciable risk any identified consequences will occur; this recognises the Court is assessing future risk likelihood.28 Only then may the sentencing Judge decide whether to exercise residual discretion.29
23 Criminal Procedure Act 2011, s 105(4).
24 Judge Tahana noted that the issues Mr Kolo took with the trial process were not factors that she could consider in a discharge application, and she put them aside.
25 Sentencing Act 2002, ss 106 and 107.
26 Dickins v R [2012] NZCA 265 at [14], citing H (CA680/11) v R [2012] NZCA 198 at [30] (citing
R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]).
R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].
28 DC (CA47/2013) v R [2013] NZCA 255 at [43].
29 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.
[34] Judge Tahana noted that the evidence at trial was that Mr Kolo was agitated, fidgeting, aggressive and exhibitive of behaviour typical of somebody under the influence of a substance. Taking all those factors into account Judge Tahana considered the offending to be at the “low to moderate end of seriousness”.30
[35] In terms of the consequences of a conviction, as no evidence was provided in support of how future travel, or his personal life and family would be affected, Judge Tahana placed little weight on the matter. Further, she considered that a charge for possession of cannabis simpliciter (which has a three-month maximum penalty) was at the lower end and was therefore unlikely to have significant impact on Mr Kolo’s future employment prospects.
[36] She noted of relevance were Mr Kolo’s previous convictions for similar offending including, in February 2013, his refusal to provide a blood specimen as requested by the police and obstructing the police. There were also further convictions from 2020 for disorderly behaviour and assaulting a police officer.
Determination
[37] I accept and agree with Judge Tahana’s assessment of the offending as being in the “low to moderate” end of seriousness. However, it is also worth noting that there is high public interest in police being able to carry out public safety operations of this type without unreasonable obstruction.
[38] Mr Kolo says that the Judge erred in her assessment of the consequences of conviction. In his affidavit Mr Kolo explains that he suffers from serious medical conditions and is dependent on treatments including prescribed dried cannabis flower and cannabis oil for severe depression and anxiety. He says the consequences of the convictions and court orders have profoundly impacted his personal and private life, leading to severe emotional distress, and affecting his relationship with his family and his church.
30 New Zealand Police v Kolo [2024] NZDC 8769 at [7].
[39] While a sentencing Judge is entitled to consider the “general consequences of a conviction” there is no material placed before the Court showing consequences out of proportion on the present facts such as to outweigh the gravity of Mr Kolo’s offending.31 The consequences are not beyond the ordinary consequences of a conviction. It follows that I find no error in the decision of the District Court.
Result
[40]I dismiss the appeal against conviction and sentence.
............................................................
Walker J
31 J (CA32/21) v R NZCA 690 at [42].
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