Larsen v Police
[2020] NZHC 2520
•25 September 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-69
[2020] NZHC 2520
BETWEEN SCOTT WILLIAM LARSEN
Appellant
AND
THE NEW ZEALAND POLICE
Respondent
Hearing: 22 September 2020 Counsel:
Mr Larsen self-represented with two support persons D P Neild for the respondent
Judgment:
25 September 2020
JUDGMENT OF CULL J
[1] The “living sovereign man scott-william of the house of larsen" appeals the conviction and sentence of Scott William Larsen (Mr Larsen) in respect of two criminal charges, on the grounds of fraud and perjury.
[2] On 26 June 2020,1 Mr Larsen was found guilty and was convicted at a Judge- alone trial in the District Court of driving while forbidden2 and assaulting a police constable.3 The Judge-alone trial proceeded in the absence of Mr Larsen under s 124 of the Criminal Procedure Act 2011.4 Mr Bott appeared as Counsel appointed to assist the Court. On the same date, Mr Larsen was sentenced on the two convictions to come up for sentence if called upon and a six-month disqualification from driving.5
1 New Zealand Police v Larsen DC Masterton CRI-2020-035-000005, 26 June 2020.
2 Land Transport Act 1998, s 52(1)(c) – maximum penalty a $10,000 fine.
3 Summary Offences Act 1981, s 10 – maximum penalty six months’ imprisonment or a $4,000 fine.
4 See Larsen, above n 1, at [2]; and New Zealand Police v Larsen DC Masterton CRI-2020-035- 000005, 26 June 2020 (Ruling of Judge Hobbs).
5 New Zealand Police v Larsen DC Masterton CRI-2020-035-000005, 26 June 2020 (Minute of Judge Hobbs), see addendum.
LARSEN v THE NEW ZEALAND POLICE [2020] NZHC 2520 [25 September 2020]
[3] Mr Larsen appeals against both the convictions and sentence on the grounds of fraud and perjury.
Factual background
[4] The following is taken from the District Court’s summary of facts and Constable Chu and Constable Rikys’ Police statements.6
[5] On 4 April 2019, Constable Jones was on patrol in Featherston. He was speaking to Mr Larsen who was known to him. While conducting police checks Constable Jones established that Mr Larsen’s driver’s licence had expired on 22 January 2018. As a result, Constable Jones served on Mr Larsen a road safety directive, which prohibited Mr Larsen from operating a motor vehicle from 4 April 2019 until he obtained an appropriate driver’s licence. Constable Jones gave evidence in the District Court that he fully explained to Mr Larsen what might occur should he be caught driving without an appropriate licence, including the possibility of vehicle impoundment and a court appearance.
[6] On 30 December 2019, Constables Chu and Rikys were working together. They completed a vehicle stop on a motor vehicle. Constable Chu had established that the vehicle’s warrant of fitness had expired, and the driver gave his name as Scott William the House of Larsen. Constable Chu searched the owner of the vehicle registration on his mobile device, clicked on the photograph to enlarge it and showed it to the driver of the vehicle, who confirmed that it was him, namely Scott William Larsen.
[7] After Mr Larsen had been stopped and told that he was a forbidden driver, he said he was going to leave. Constable Chu gave evidence that it looked as if Mr Larsen was going to drive off and reached for the car keys. After asking for the car keys, Constable Rikys reached in to grab the vehicle keys to prevent Mr Larsen from driving away. As she did so, Mr Larsen wound the window up on her arm. Eventually, Mr Larsen wound the window down. Constable Chu then grabbed his wrist and Constable Rikys grabbed the keys.
6 Larsen, above n 1, at [4]-[13].
District Court decision
[8] In the District Court, the Judge noted the prosecution had the burden of proving beyond reasonable doubt the essential elements of the two charges. He then outlined the facts as above.
[9] On the driving while forbidden charge, the Judge concluded that, based on the evidence of Constables Chu and Rikys, Mr Larsen drove the motor vehicle on 30 December 2019 despite not having a valid driver’s licence and despite being forbidden to drive until he had obtained an appropriate licence.7 The Court concluded that it was satisfied beyond reasonable doubt that on 30 December 2019, Mr Larsen drove a motor vehicle during a period that he had been forbidden from driving in breach of s 52(1)(c) of the Land Transport Act 1998 and found him guilty of that charge.8
[10] On the assault charge, the Judge explained the two essential elements to this offence are an assault, defined as the direct or indirect international application of force, and that the victim was a police officer acting in the execution of his or her duty.9 The Judge concluded that the evidence of Constables Rikys and Chu was consistent and unchallenged. In addition, there was a photograph produced as an exhibit of Constable Rikys’ right arm which clearly showed a bruise that Constable Rikys said was sustained when the window was wound up onto her arm by Mr Larsen. He concluded this was the indirect application of force by use of the window, and that it was the intentional application of indirect force.10 He also concluded that at the time of the assault, Constable Rikys was acting in the lawful execution of her duty as a police officer. He therefore found Mr Larsen guilty of that charge.11
[11] Having found Mr Larsen guilty of the two charges, the Judge issued a minute recording that the trial proceeded in Mr Larsen’s absence under s 124(1) of the Criminal Procedure Act but that s 123 of that Act prohibits the Court from sentencing
7 Larsen, above n 1, at [8].
8 At [9].
9 At [10].
10 At [15].
11 At [17].
a defendant in his or her absence on a category two offence.12 On that basis, the Judge directed a notice under s 124(3) be served on Mr Larsen, advising him to appear for sentencing at a later date. The Judge indicated that another Judge could sentence Mr Larsen, observing that the assault on the police officer was not one of the most serious of its kind that comes before the Court and the driving offence “is a fineable only matter with a mandatory disqualification period.”13
[12] Subsequent to the issue of that minute, after Counsel assisting spoke to him, Mr Larsen came back into the courtroom and was sentenced on the assault charge to come up for sentence if called upon within nine months and disqualified from driving for six months for the failing to comply with the prohibition.14
Approach to appeals
Approach to conviction appeal
[13] An appeal against conviction in a judge-alone trial is a general appeal, governed by s 232 of the Criminal Procedure Act. The appellant must satisfy the Court that a miscarriage of justice has occurred, either because “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or for any other reason.15 A miscarriage of justice is “any error, irregularity, or occurrence” 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”.16 As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.17
[14] The Supreme Court has recently re-examined the role of s 232(2)(b) and the general function of an appellate court.18 In Sena v Police, the Supreme Court held that the function of the appellate court is to re-evaluate the evidence and an appellant is entitled to the appeal court’s determination of whether the first instance judge was
12 Larsen, above n 5, at [2]. Assault on a police officer is a category two offence.
13 At [3].
14 See addendum.
15 Criminal Procedure Act 2011, s 232(2).
16 Section 232(4).
17 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18 at [30].
18 Yusuke Sena v New Zealand Police [2019] NZSC 55.
right or wrong substantively on the outcome. On this approach, if the appellate court comes to a different view on the evidence, the trial judge necessarily will have erred in their assessment.19
[15] The Court cautioned however that this change of approach does not mean the role of the appellate court is to consider the issues de novo as if there had been no hearing at first instance. Since it is an appeal, it is for the appellant to show than an error has been made. In assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “customary caution”.20
[16] The onus is on the appellant, Mr Larsen, to satisfy the Court that the Judge erred in his assessment of the evidence to such an extent that has created a real risk that the outcome of the trial was affected.
[17] If the appeal is successful, the Court must set aside the conviction and either direct that a judgment of acquittal be entered or that a new trial be held, or make any other order it considers justice requires.21
Approach to sentence appeal
[18] This appeal is brought under s 250 of the Criminal Procedure Act. An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.22 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.23
19 At [38].
20 At [38]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] (footnote omitted).
21 Criminal Procedure Act, s 233(3).
22 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
23 Ripia v R [2011] NZCA 101 at [15].
Decision
Conviction appeal
[19] In his notice of appeal, dated 26 June 2020, Mr Larsen’s ground of appeal was “perjury”. From his written and oral submissions however, three principal issues emerge.
[20] First, he submits he is not to be referred to as Mr Larsen. He submits that the “corporate name” of Larsen that the courts are using is a reference to an “artificial entity created through the use of artificial construct by all Crown representatives and forcefully against the will of the living man: scott-william.” Because he does not recognise himself as Mr Larsen, he says that the living scott-william was never invited to any Court, nor addressed by any Police and therefore the proceedings are null and void.
[21]Section 379 of the Criminal Procedure Act provides:
No charging document, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding may be dismissed, set aside, or held invalid by any court by reason only of any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice.
[22] The observations of the Court of Appeal in the recent decision of Talley’s Group Ltd v WorkSafe New Zealand on the ambit of s 379 and the effect of any defects on a charging document is helpful:24
… A charging document will be a nullity if it fails to disclose an offence, or a defendant, or is so unintelligible that the nature of the offence cannot be ascertained. Such will also be the case where the charge lacks a required statutory consent, or is out of time. To void a charging document therefore, relevant defects must be so radical as to deprive the document of its essential character. Technical or mechanical defects will not suffice, and the courts will be slow to reach such a “drastic conclusion”. It follows that even serious defects will be protected by s 379 of the CPA if, despite the impugned defect, the document nonetheless discloses a recognisable charge, a recognisable defendant, (where necessary) is in time and is supported by statutory consents. But if one or more of these elements is missing, “there is nothing before the Court capable of rectification”.
24 Talley’s Group Ltd v WorkSafe New Zealand [2018] NZCA 587, [2019] 2 NZLR 198 at [45] (emphasis added).
[23] Despite the alleged error in references to “Mr Scott Larsen” in the proceedings, the information laid against Mr Larsen disclosed a recognisable charge and a recognisable defendant.25 Mr Larsen does not appear to dispute that he was the person charged. Rather he maintains that he has been charged under a false construct and “Scott William Larsen” is an artificial entity that the state has created. He says his mother gave him the name “scott-william” and, although his family name is Larsen, it is not his name but a name that goes back thousands of years. It is on this basis that Mr Larsen believes he would be committing perjury to accept the name as his. In essence, he says that Scott William Larsen is a corporate entity and is not the “living man: scott-william”.
[24] I am unable to accept Mr Larsen’s submission. Mr Scott William Larsen is, at law, “the living scott-william”. They are one and the same. Mr Larsen was charged appropriately by the Police and appeared before the District Court. The Judge also found there was no doubt that Mr Larsen was the person Constables Chu and Rikys pulled over at the traffic stop on 19 December 2019. Mr Larsen accepted as much on that day and I see no reason, nor has one been submitted to me, to come to any other conclusion. Identity is not in issue in these proceedings, and I take that submission no further.
[25] Second, Mr Larsen submits there has been corruption, breach of the code of conduct to act in good faith, and breach of the fundamentals of contract. He says that the actions by the Police and the Court have been made with intent “to deceive living man: scott-william to gain ownership of him using Fraud, Force, in a world of Commerce and Contract.” He explains that the actions of all parties involved in the matter are guilty of “many crimes” against a living person and also corporate crimes. He submits that the Police and District Court “claims” are fraudulent, particularly as they have not followed due process. He says this makes their claims null and void.
[26] It is a serious allegation to claim that the Police and the District Court have acted fraudulently and/or have ignored due process. Fraud requires a dishonest activity that causes loss to an individual, company or corporation. Mr Larsen points
25 See, for example, Phillips v New Zealand Police [2020] NZCA 425.
to the asserted misuse of his name by Police and the Court as being fraudulent. I have already addressed why this claim cannot succeed. It is not fraudulent to refer to Mr Larsen by the name on his birth certificate. Allegations of perjury are even more serious. To prove perjury requires both a wilful falsity and an intent to mislead.26 It is a high threshold to prove and is not made out on the facts before me and nor is it a proper or lawful allegation to make in these circumstances.
[27] Third, Mr Larsen and his supporters make the claim that as Governors of the Ariki Nui o Tuhoe Government, they are not subject to the laws of New Zealand or Acts of the Crown. The submission is that as Governors, they carry the jurisdiction of the native constitution and government that was carried by their tupuna and recognised by the Anglican Church. Although there was no formal acknowledgement that Mr Larsen protested the Court’s jurisdiction, I address these submissions as a potential protest to jurisdiction. Any protest to the Court’s jurisdiction on the basis of an assertion of Māori sovereignty is without merit. Similar challenges to jurisdiction and sovereignty have been made previously and the higher courts have repeatedly rejected them.27
[28]I therefore find there has been no miscarriage of justice.
[29] For completeness, I deal with the Judge’s decision to proceed with the trial in the absence of Mr Larsen. Section 122 of the Criminal Procedure Act gives a judge jurisdiction to proceed in the absence of a defendant if the Court “is not satisfied that the defendant has a reasonable excuse for his or her non-attendance”, unless “the Court is satisfied that it would be contrary to the interest of justice to do so”. Section 124 sets out the procedure that applies when a hearing proceeds in the absence of the defendant and provides that the hearing may proceed up to and including the delivery of the judge’s decision.28
26 R v Goodyear-Smith HC Auckland T332/92, 27 July 1993 at 5.
27 See, for example, Yates v R [2019] NZCA 155; Morunga v Police [2016] NZCA 599; Wallace v R [2011] NZSC 10; Phillips v R [2011] NZCA 225; R v Toia [2007] NZCA 331; and Creeks v R HC Auckland A138/00, 6 November 2000.
28 Criminal Procedure Act, s 124(2)(d)(ii).
[30] On 26 June 2020, the morning of the hearing, Mr Larsen was present in the courthouse. When his matter was called he appeared in the doorway of the courtroom with two support people but refused to enter the body of the Court. He had a long conversation with the Judge, which was summarised in the Judge’s first ruling,29 and in which Mr Larsen outlined his views as to why he did not intend to enter the courtroom past the doorway. His reasons involved being a “natural man”, the law of constructive trusts and an analogy with the Anglican Church.
[31] I am in agreement with the District Court Judge that there was no good reason for Mr Larsen’s non-attendance, particularly given he was in the Court building, and the trial proceeded appropriately in Mr Larsen’s absence. I find that it was appropriate the Judge proceeded to hear the matter under ss 122 and 124 of the Criminal Procedure Act.
[32] There is one final matter which I consider needs to be clarified. At the close of his reply submission, Mr Larsen asserted that because there was no rebuttal from the Crown of his two affidavits of “Truth” and “Life”, he could proceed to “travel”. If this signifies that Mr Larsen considers he is not subject to the laws of New Zealand or their administration, I wish to make it clear that there was no need for, or requirement on, the Crown to answer these affidavits. Further, Mr Larsen is subject to the laws of New Zealand and their administration, despite his claims of an alternative sovereignty.
[33]I turn then to consider the sentence appeal.
Sentence appeal
[34] Although Mr Larsen did not specifically appeal against his sentence, Mr Neild for the Police addressed the Court on the two aspects of the sentence imposed on Mr Larsen. While noting that the sentence to appear if called upon was light in respect of the assault on a police officer, Mr Neild directed the Court’s attention to the penalties for a breach of s 52 of the Land Transport Act. Section 52(1)(c) has a maximum penalty of a $10,000 fine but there is no mandatory disqualification. Mr Neild acknowledged that disqualification was not available under s 52(1)(c) of the
29 Larsen, above n 4.
Land Transport Act but if the offence was seen to relate to road safety, disqualification could be made under s 80 of that Act.
[35] Given the unusual circumstances which occurred on the day of the hearing, there are no notes of sentencing or record of whether the Judge made the disqualification under s 52 or s 80 of the Land Transport Act. From the facts available to this Court, it appears that Mr Larsen was forbidden from driving because he needed to renew his licence, not because of any traffic infringement or inappropriate or unlawful driving.
[36] Although Mr Larsen eschews the Court’s processes, the administration of justice, and the laws of New Zealand being imposed on “living sovereigns”, I consider that it is fair and just that the disqualification imposed by the District Court be quashed. As I have noted, in the District Court Judge’s minute the Judge signalled that the driving while prohibited charge is a “fineable only matter with a mandatory disqualification period”30 and when Mr Larsen reappeared in the Court the Judge proceeded on that basis. This was an error. Without reasons being given under s 80 of the Land Transport Act that the offence involved a compromise of road safety, there was no lawful basis to impose a six month disqualification.31
[37] I find therefore that Mr Larsen’s sentence appeal is successful and I quash the six month disqualification from driving. In doing so, I want to specifically acknowledge Mr Neild’s professional and appropriate actions as a model prosecutor in these circumstances. But for his identification of the problem, Mr Larsen’s sentence appeal would not have had the same result.
[38] There is, however, one matter I wish to clarify as a consequence of quashing the period of disqualification. If Mr Larsen wishes to drive a motor-vehicle, he must first obtain an appropriate driver’s licence, as the law requires.
30 Larsen, above n 5, at [3].
31 I note that s 52A(3) of the Land Transport Act provides for an automatic six months disqualification from driving, when a person has contravened s 114, for failing to stop. However, they are not the sections under which Mr Larsen was charged and convicted.
Request for the transcript
[39] Following the hearing, Mr Larsen made a written request to the Registry for the transcript of the hearing. Mr Larsen gave no grounds for seeking the transcript, other than for his own records.
[40] Mr Larsen’s request falls to be considered under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). Rule 9(5)(a) provides that a record of a court proceeding in electronic form that is in the custody and control of the court may be copied only with the permission of a Judge.
[41] Rule 11 provides that in asking to access court documents, there is a strict process the applicant must comply with:
(a)it must be a written request that identifies the person and their address, sets out sufficient particulars of the document to enable the Registrar to identify it, gives reasons for asking to access the document which must set out the purpose for which the access is sought, and sets out any conditions of the right of access that the person proposes as conditions they would be prepared to meet;
(b)the Registrar must then give a copy of the request to the parties (the Judge can dispense with that requirement);
(c)if the other party wants to object to the request, they must give written notice of their objection setting out the ground on which they object within a strict timeframe; and
(d)a Judge may grant the request in whole or in part with or without conditions, refuse the request, or refer it to a Registrar for determination.
[42] Rule 12 provides that in determining a request under r 11, the Judge must consider the nature of and the reasons given for the request, and take into account each of the following that is relevant:
(a)the orderly and fair administration of justice;
(b)the right of a defendant in a criminal proceeding to a fair trial;
(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice;
(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person;
(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions);
(f)the freedom to seek, receive, and impart information;
(g)whether a document to which the request relates is subject to any restriction under rule 7 (here it is not); and
(h)any other matter that the Judge thinks appropriate.
[43] In these circumstances, I am dispensing with the requirement that the Registrar give a copy of the request to Counsel for the Police and nor do I require to hear from the Police in these circumstances. My reasons for dispensing with this requirement are the same as those in declining Mr Larsen’s request.
[44] There has been no compliance by Mr Larsen with r 11 of the Rules, in that he has given no reasons for asking to access the transcript, other than for his own records, nor has he addressed conditions for accessing the transcript that he would propose to meet. Under r 12, I must consider the nature of and the reasons given for his request and take into account all the factors enumerated, including the orderly and fair administration of justice and the right of a defendant in a criminal proceeding to a fair trial.
[45] I observe that the Supreme Court in Nuku v R declined a request for a transcript of the hearing, where Mr Nuku’s reason for seeking a transcript was for the purposes of prosecuting complaints or proceedings associated with alleged wrong doings by prison and police officers at Paremoremo Prison.32 The Court of Appeal had refused the application because Mr Nuku’s reason for seeking the transcript was not sufficient: his ability to advance his complaints was not materially affected by his having (or not having) a transcript.33 The Supreme Court held that there was no error in the Judge’s reasons and the miscarriage of justice ground had not been made out.34 Similarly, although there has been no reason given here, in the event Mr Larsen wished to advance his appeal further, his ability to do so will not be affected by recourse to the transcript of hearing.
[46] I consider that the orderly and fair administration of justice does not extend to involving the courts administration and transcription services in unnecessary time and resource in providing transcripts in circumstances such as these. I have set out the way in which the hearing proceeded on a matter that was fraught from the outset. No fair trial rights or need for disclosure for the purposes of defending proceedings are at play here.
[47] Accordingly, Mr Larsen’s written request to the Registry for a copy of the transcript is declined.
Conclusion
[48]Mr Larsen’s conviction appeal is dismissed.
[49]Mr Larsen’s sentence appeal is upheld in part.
[50] The sentence of six months disqualification on the driving while forbidden conviction is quashed. The sentence in respect of the conviction for assault on a police officer remains extant.
32 Nuku v R [2018] NZSC 96 at [2].
33 At [2].
34 At [9].
[51]Mr Larsen’s request for the transcript is declined.
Cull J
Solicitors:
Crown Solicitor, Wellington for the respondent
3
13
0