M v Police HC Auckland CRI 2008-404-325

[2009] NZHC 1941

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000325

BETWEEN   M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 July 2009

Appearances: No appearance by or on behalf of Appellant

Sarah Pidgeon for Respondent

Judgment:      30 July 2009

JUDGMENT OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Respondent

(cc: Appellant in person)

M V POLICE HC AK CRI 2008-404-000325  30 July 2009

[1]      Mr  M   filed an application on 15 July 2009 for leave to appeal to the Court of Appeal against my judgment delivered on 22 June

2009 dismissing Mr M  ’s appeal against his conviction in the District Court at

Auckland on 25 September 2008 on one charge of assaulting a police officer.

[2]      By  way  of  brief  summary,  Mr M  ,  who  was  then  represented  by counsel, Mr Peter Eastwood, raised two  grounds  in  support  of  the  appeal.    His primary submission was that Mr M   lacked the mens rea to commit an assault (he acknowledged his commission of the actus reus of the crime by spitting at a police officer) and, second, that the District Court Judge had erred in setting aside a witness summons.  Regrettably the notes of evidence in the District Court and of the Judge’s oral decision were unavailable.  By consent I reheard the evidence given by the  police  officer,  Constable  Scott  Middlemiss,  who  was  the  only  prosecution witness.  He was cross-examined by Mr Eastwood.  I accepted his evidence.

[3]      I specifically found as follows:

[8]       I have no hesitation in accepting Constable Middlemiss’ denial of these propositions.  He and Mr M   were a metre or less apart when the latter spat.  The officer was clear that Mr M   was “directly in front of me, looking at me and talking aggressively to me”.   He attributed the appearance of saliva on the counter to the random nature of Mr M  ’s spitting exercise rather than as any indication that it was generally directed. The officer regarded it as good fortune that the saliva only struck his forearm and not his face or upper body.

[9]       I had the opportunity to observe Constable Middlemiss carefully under cross-examination.   He was a convincing witness.   His memory of events was clear and concise.  Moreover, it was uncontradicted.  I have no difficulty  in  drawing  the  inference  that  Mr M    spat  at  the  officer deliberately or intentionally and is thus guilty of the offence of assault.

[4]      The second ground of Mr M  ’s appeal related to the Judge’s decision to set aside a witness summons which he had issued against the former personal secretary to the then Prime Minister, the Rt Hon Helen Clark.  I was satisfied that the Judge had jurisdiction.   There was no challenge to the substantive grounds of his decision to set aside.  That ground of appeal also failed.

[5]      It is appropriate to record the text of Mr M  ’s application (which he filed personally) as follows:

1)Judge Potter in her minutes requested the attendance of the appellant on the grounds that the District Court files had disappeared and there would need to be a rehearing;

2)On  18  June  2009  the  registrar,  before  the  appearance  of  Judge Harrison in the High Court, asked the appellant whether he would swear on the bible or take an affirmation, to which the appellant stated that he would take an affirmation;

3)The  judge  then  indicated  that  he  would  hear  the  evidence  of Constable MIDDLEMISS but not the appellant as the appellant had not given oral evidence in the District Court, a fact that he knew before entering the court even though the file was missing;

4)The judge did not accept copies of the documents which had been submitted in evidence in the District Court by the appellant;

5)The  judge  did  not  allow  the  appellant  to  give  evidence,  in contravention of High Court Rule 10.10;

6)The summons of ALEXANDER ROBERT MCLEAN to the District Court was overturned in the District Court in violation of District Court Rules,

a)        a factōtum is not a judicial officer;

b)the precedent provided was that of a High Court judge who had recused themselves and was then summonsed in that same   case   and   subsequently   released   from   providing evidence  in  that  case,  an  acceptable  decision  given  the nature of intangibles;

7)The decision of the District Court judge misinterpreted the ratio of intent in the question of spitting:

a)the spitting was intentional but there was no intention of spitting at the constable;

8)        The photographic evidence, still in the hands, of the appellant:

a)clearly shows a radially symmetric globule of saliva which rules out any saliva landing on the constable;

b)the  saliva  was  some  10  centimetres  from the  top  of  the vertical face of the counter which is perhaps 50 centimetres deep and behind which the constable stood;

9)The constable accepted the letter of apology of the appellant for the constable feeling attacked but refused to accept that the appellant had no intention of hitting the constable;

10)The appellant did not give evidence in the District Court as the documentary evidence should have been sufficient;

11)The  registrar  instructed  the  appellant  on  14  July  2009  that  a rehearing could not be sought from the High Court and leave to appeal to the Court of Appeal must be sought from the High Court.

[6]      On 21 July 2009 I issued a minute, directing as follows:

[2]       The  application  will  be  set  down  for  hearing  before  me  at

9:00 am on 30 July 2009.  However, by 5:00 pm on 27 July 2009, I direct Mr M   to file an amended application in a legally coherent form which identifies a question of law arising from my judgment dated 22 June 2009 which ought, by reason of its general or public importance, be submitted to the Court of Appeal for determination.  Unless Mr M   takes that step, his application will be struck out.

[7]      Mr M   responded to that minute by way of an email to the Registrar.  In essence,  he declined  my invitation  to  file an  amended  application  which  might identify a question of law of such general or public importance that it should be referred to the Court of Appeal.  Mr M  ’s email simply alleged the existence of a breach of the High Court Rules (which do not apply to a criminal proceeding), an alleged error of ‘interpretation of intention (to spit) by the District Court which Hon Justice Harrison has agreed with … and [my refusal] to allow a rehearing, accept copies of the documentary evidence as the file was lost’ or issue a summons to the former personal secretary of the Prime Minister.

[8]      Mr M  ’s brief note, which he has declined to expand on this morning, is not sufficient to justify leave: s 144 Summary Proceedings Act 1957.   A sense of perspective is necessary.  Mr M   admits that he spat at the police officer.  The only apparent issue is whether or not he intended to assault that particular officer or just to make a general statement of protest.   That is a question of fact which I determined on 22 June by upholding the decision of the District Court Judge.  Self- evidently, the question of whether a summons to appear was issued to the former Prime Minister’s personal secretary had no bearing whatsoever on that issue.

[9]      The application was called this morning at 9.05 am.  Mr M   had notice that it was set down for hearing at 9.00 am.  It is now 9.15 am and he has failed to

appear.  His application is dismissed.

Rhys Harrison J