Mitchell v Police
[2017] NZHC 3143
•14 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-033
CRI-2017-404-034 [2017] NZHC 3143
BETWEEN GORDON MITCHELL
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 12 December 2017 Counsel:
P D Munro for Appellant
E A M Mok for RespondentJudgment:
14 December 2017
JUDGMENT OF BREWER J
This judgment was delivered by me on 14 December 2017 at 4:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Tamaki Legal Ltd (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
MITCHELL v POLICE [2017] NZHC 3143 [14 December 2017]
Introduction
[1] Judge Roberts in the Auckland District Court on 8 December 20161 found Mr Mitchell guilty of three charges of contravening a restraining order2 and one charge of intimidation.3 He also found Mr Mitchell not guilty of possessing an offensive weapon.4 Mr Mitchell was later sentenced to come up for sentence if called upon within 12 months.5
[2] Mr Mitchell was self-represented at the trial, but the Court was assisted by an amicus curiae, Mr Ravelich.
[3] Mr Mitchell now appeals his convictions.6
Background
[4] Mr Mitchell shares a driveway with Ms Michelle Kidd and another property owned by Housing New Zealand (“HNZ”). Ms Kidd’s property is behind Mr Mitchell’s property.
[5] There has been a longstanding dispute between Mr Mitchell and Ms Kidd over use of the shared driveway.
[6] Ms Kidd gave evidence at trial that she was concerned about the number of people parking on the driveway whenever Mr Mitchell hosted parties. Her concern arose from the fact that she was constantly prevented from accessing her property.
[7] On 3 February 2016, Ms Kidd acquired a restraining order against
Mr Mitchell. The restraining order included the following three special conditions:7
(a) Mr Mitchell is to ensure neither he nor his visitors park any vehicles on the common driveway providing access to the properties;
1 Police v Mitchell [2016] NZDC 25222.
2 Harassment Act 1997, s 25(1)(a).
3 Summary Offences Act 1981, s 21(1)(a).
4 Crimes Act 1961, s 202A(4)(b).
5 Pursuant to s 110(1) of the Sentencing Act 2002.
6 He no longer appeals his sentence because the period has expired.
7 The third special condition was added on 13 October 2016.
(b)Mr Mitchell may not prevent Ms Kidd’s surveyor spraying a green line denoting the common driveway and may not approach or communicate with Ms Kidd over it; and
(c) Mr Mitchell and/or any associates are restrained from interfering with the green line in any way whatsoever once it is replaced to remark the common driveway.
[8] Ms Kidd then hired a fencing company to erect a fence on the properties’ boundary. Mr Mitchell did not want the fence built. On 25 January 2016, he attempted to obstruct workers from the fencing company. The Police alleged that Mr Mitchell intimidated Mr Daniel Sullivan, an employee of the fencing company. Mr Sullivan gave evidence that Mr Mitchell had verbally abused and threatened him. The Police also relied on CCTV footage, which showed Mr Mitchell behaving in an agitated manner and striking a peg placed on the driveway eight times with an axe.8
A neighbour, Ms Miriam Rider, gave evidence that she heard Mr Mitchell threaten
Mr Sullivan and saw a “[t]omahawk in his hand”.9
[9] As regards the restraining order charges, the issue was whether Mr Mitchell had allowed visitors to park on the shared driveway. The Police relied on photographic evidence to establish these charges.
[10] The first occasion was on 26 March 2016. The Police alleged Mr Mitchell allowed a blue Holden, licence plate ZG8588, to park on the driveway. Mr Mitchell initially denied knowing the owner of the Holden, Mr Hinetangi Coleman. But he later admitted in a discussion with Judge Roberts that he knew Mr Coleman. The inference was, therefore, available that Mr Coleman parked in the driveway while visiting Mr Mitchell.
[11] The second occasion was on 23 September 2016. The Police alleged
Mr Mitchell allowed a vehicle, licence plate HHZ645, to park on the driveway. Again, he initially denied knowing the owner, Ms Carly Taifo. But he later conceded
8 Police v Mitchell, above n 1, at [13].
9 At [21].
in a discussion with the Judge that he knew Ms Taifo. The same inference as above was available.
[12] The last occasion was on 1 October 2016. The Police alleged Mr Mitchell allowed a black people mover, licence plate HPQ242, and a white ute to park on the driveway. Ms Abby Haira and Mr James Teuaimeiti owned each vehicle respectively. Mr Mitchell admitted to the Police at the time that the white ute was his friend’s vehicle. He had forgotten to tell his friend he could not park there. At trial Mr Mitchell denied knowing the owner of the people mover.
Grounds of appeal
[13] Mr Mitchell’s grounds of appeal against conviction set out in his notice of
appeal are twofold:
(a) Judge Roberts erred by taking into account admissions made by Mr Mitchell while seated next to the amicus at the bar in relation to two of the restraining order charges; and
(b) Judge Roberts erred by ruling that ss 56(1) and 58 of the Crimes Act
1961 (“CA”) could not provide a defence to the charge of
intimidation.
[14] Mr Mitchell also seems to appeal his convictions on three additional grounds. These were advanced in a combination of his initial appeal submissions and the later submissions of his counsel, Mr Munro. They are as follows:
(a) Mr Mitchell did not receive a fair trial;
(b)Judge Roberts erred by allowing the Crown to file evidence from HNZ, and erred by declining Mr Mitchell leave to admit an email from HNZ; and
(c) Judge Roberts erred by not permitting Mr Mitchell to lead evidence from a potential defence witness.
The law
[15] An appeal against conviction must be allowed if the Court is satisfied that:10
(a) The Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b) A miscarriage of justice has occurred for any reason.
[16] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:11
(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.
[17] The Supreme Court has defined a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.12 On the other hand, it has held that not every departure from good practice renders a trial unfair.13 The departure must instead be “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.14
[18] An appeal against conviction proceeds by way of rehearing.15 I must carefully consider all the matters that were before Judge Roberts. But, I must reach my own decision. If I conclude Judge Roberts was wrong, I must substitute his decision with my own. I must also be mindful of the limitations involved in not seeing or hearing directly from witnesses.16 I should only interfere with the factual
findings of the trial Judge in exceptional circumstances.17
10 Criminal Procedure Act 2011, s 232(2).
11 Section 232(4).
12 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
13 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
14 At [78]; citing Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
15 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
16 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]-[31].
17 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38].
Appeal against conviction
Admissions from Mr Mitchell not given as sworn evidence
[19] Mr Mitchell submits that Judge Roberts erred by taking into account statements made by him in the courtroom in relation to the restraining order charges where the breaches were alleged to have occurred on 26 March 2016 and
23 September 2016.
[20] Essentially, Mr Mitchell engaged in conversation with Judge Roberts and the prosecutor, Sergeant Osbourne. The interaction is recorded in the transcript:
MrMitchell: Yeah. And I just wanted to know if I can address you for a couple of things that happened yesterday.
The Court: Yes.
MrMitchell: There were two images with names mentioned and I said I didn’t know them. In cross-examination I thought it was a person I didn’t know. One was Hinepare, Hinetangi and Carly, Carly Tapeon … Do you remember that?
Sergeant Osbourne: The vehicles you didn’t know the owners of?
MrMitchell: Yeah and who’s they were. Well I’ve since overnight found out who they were Judge, I do know who they are now. Is that important or what?
Sergeant Osbourne: Well they’re associated to your address, yes they are
important.
…
MrMitchell: I haven’t spoken to them but I do know those names, I know them under other names that’s why I didn’t know them. I still don’t know if that’s their car ‘cos you say they are.
The Court: Right, you’re telling me now that you know –
Mr Mitchell: I’ve since found out who those persons were.
The Court: And you now know the owners of two of those cars is that right?
Mr Mitchell: The two vehicles yeah.
[21] When Judge Roberts later indicated he wanted Mr Mitchell to repeat the same information under oath, Mr Mitchell said he did not wish to give any further evidence.
[22] Nevertheless, the Judge clearly took Mr Mitchell’s statements into account
when making his decision:18
[24] … the concession [the appellant] makes is one that I will factor in to a determination.
…
[32] Yesterday, on the morning, Wednesday, he acknowledged from the bar that notwithstanding evidence to the contrary, he now acknowledged he knew the registered owners of ZG8588 and HHZ654. These, I restate, are the vehicles attaching to the first and second chronological breaches of the restraining order.
…
[37] … Wednesday morning’s concession at page 197 onwards of the notes of evidence has him now acknowledging the vehicle ZG8588 established to be owned by one Hinetangi Coleman, the first charge, vehicle HHZ645 established to be owned by one Carly Taifo are both persons who are known to him.
[23] The Judge concluded:
[38] Common sense would indicate if those people are known to him as he concedes, they were not parked adjacent to his house to visit the complainant Kidd or for that matter the occupant of the Housing Corporation property. The obvious and clear inference to be drawn, those people were on the day in question there to visit the [appellant].
[24] Judge Roberts then convicted Mr Mitchell of those two charges. He specifically mentions his statements in his reasoning.19
[25] The first issue is whether the statements made by Mr Mitchell are evidence
that the Judge could consider in the trial. The Evidence Act 2006 (“the Act”) does not define “evidence”; instead it regulates the admission of material as evidence.
18 Police v Mitchell, above n 1.
19 At [41], [43].
[26] There is an obvious preference for sworn evidence. As Hammond J
explained:20
The fundamental policy concern behind modern evidence codes is that a witness — if she or he is to say anything — should be called on oath. Once the witness is before the Court, much greater latitude can be allowed as to what is examined, precisely because the material is subject to the great check of cross-examination …
Finally, the fundamental concern which lies behind the hearsay rule — that a witness shall (only) be examinable on oath — has explicit statutory recognition …
[27] The Judge was referring at the end of the passage to the then s 366A of the
CA:21
(1) No accused person shall be entitled to make an unsworn statement of fact at his trial.
(2) Nothing in this section shall limit the provisions of section 369 of this Act.
[28] As noted in s 366A(2), there was an exception to that rule in the form of s 369:22
Any accused person on his trial, or his counsel or solicitor, may admit any fact alleged against the accused so as to dispense with proof thereof.
[29] Both these sections have been repealed. Section 366A has not been replaced. The admission of statements made by a defendant is regulated by the Act.
[30] Here, Mr Mitchell gave evidence, and completed his evidence.23 He had further witnesses to call. Overnight he reflected on answers he gave in cross- examination and, the next morning, told the Judge, and the prosecutor, that he had worked out that some of his answers were incorrect. That was not sworn evidence, and Mr Mitchell later declined to go back in the witness box and testify about his
statements. The statements were in the nature of admissions.
20 R v K [1995] 2 NZLR 440 (HC) at 447.
21 The section was repealed on 1 July 2013 by s 6 of the Crimes Amendment Act (No 4) 2011.
22 The section was repealed on 1 August 2007 by s 215 of the Evidence Act 2006.
23 Section 21 of the Evidence Act prohibits a defendant who does not give evidence from offering his or her own hearsay statement in evidence in the proceeding. I do not consider this section applies to this case.
[31] In my view, the Judge could accept Mr Mitchell’s statements as evidence
admissible in the trial under s 9 or, alternatively, s 12 of the Act.
[32] Section 9 provides:
(1) In any proceeding, the Judge may,—
(a) with the written or oral agreement of all parties, admit evidence that is not otherwise admissible; and
(b) admit evidence offered in any form or way agreed by all parties.
(2) In a criminal proceeding, a defendant may admit any fact alleged against that defendant so as to dispense with proof of that fact.
(3) In a criminal proceeding, the prosecution may admit any fact so as to dispense with proof of that fact.
[33] Here, it could be said the Judge admitted evidence that is not otherwise admissible, and was able to do so because of the oral agreement of the parties (s 9(1)(a)). Mr Mitchell’s agreement is implied because he raised the matter before the Judge, in Court, to correct answers given in evidence the previous day. The prosecutor did not object (and why would he?) and his consent to the Judge admitting the statements as evidence is implied also.
[34] It might also be said that by making statements that amounted to the admission of facts, Mr Mitchell intended that they be accepted by the Judge without further proof being necessary (s 9(2)). The subsection does not require an admission to be confined to the giving of evidence. Nor does it specify a timeframe for when the admission must take place. Although it is common practice to file a memorandum of facts prior to trial, Mr Mitchell was entitled to admit the fact that he knew the owners of the relevant vehicles during the trial.
[35] But, if that is to strain the language of s 9, then s 12 applies:
If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part, decisions about the admission of that evidence—
(a) must be made having regard to the purpose and the principles set out in sections 6, 7, and 8; and
(b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken, must be made having regard to the common law.
[36] Section 6 provides the purpose of the Act:
The purpose of this Act is to help secure the just determination of proceedings by—
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.
[37] Section 7(1) sets out the fundamental principle that all relevant evidence is admissible (unless otherwise excluded).
[38] Section 8(1) stipulates (relevantly) that a Judge must exclude evidence if its probative value is outweighed by the risk that it will have an unfairly prejudicial effect on the proceeding.
[39] In this case, if the statements made by Mr Mitchell are not admissible as evidence under s 9, then they are particular evidence the admission of which is not otherwise regulated. Judge Roberts’s decision to admit the statements as evidence is consistent with the purpose and principles set out in ss 6, 7 and 8. The statements were made voluntarily to the Judge in open Court and in the presence of the prosecutor, they are relevant to issues in the proceeding, and their probative value is high. As they are voluntary admissions made by the defendant and they are specific to the issues, there is no concern about their reliability. There is no unfair prejudicial effect on the proceeding either.
[40] From that point, it was a matter of weight for the trial Judge. Mr Mitchell had given sworn evidence that he did not know the owners of the vehicles. But there
was nothing prohibiting Judge Roberts from taking his subsequent admissions into account. The Judge was entitled to weigh the relevant factors and make an overall assessment. And he did.
[41] However, Mr Mitchell submits that, as he was self-represented, he should have been stopped and warned of the consequences of making admissions from the bar. He relies on s 60 of the Act, which (relevantly) provides:
(1) This section applies if—
(a) a person is (apart from this section) required to provide specific information—
(i) in the course of a proceeding; or
…
(b) the information would, if so provided, be likely to incriminate the person under New Zealand law for an offence punishable by a fine or imprisonment.
(2) The person—
(a) has a privilege in respect of the information and cannot be required to provide it; and
(b) cannot be prosecuted or penalised for refusing or failing to provide the information, whether or not the person claimed the privilege when the person refused or failed to provide the information.
…
(4) Subsection (2) does not enable a claim of privilege to be made—
…
(c) by a defendant in a criminal proceeding when giving evidence about the matter for which the defendant is being tried.
…
[42] Mr Mitchell argues that because s 60(4)(c) uses the phrase “when giving evidence”, the privilege still applies to statements made from the bar. Judge Roberts, therefore, had an obligation pursuant to s 62(1) to make Mr Mitchell aware of the privilege and its effect.
[43] In my view, the privilege does not apply in this situation. Mr Mitchell was not required to provide specific information while he was seated at the bar. Instead, he decided to volunteer the information because he realised he had given incorrect information under oath the day previous. There was, therefore, no obligation on Judge Roberts pursuant to s 62(1) to make him aware of the privilege. It did not exist.
[44] Mr Mitchell argues, alternatively, that he should have been warned pursuant to s 23(4) of the New Zealand Bill of Rights Act 1990 that he had the right to refrain from making any statements. I do not think s 23(4) applies to a defendant at his trial who volunteers a statement in the course of conducting his defence. But if it does, there was no impropriety of any moment which would lead to the exclusion of the evidence.24
Application of ss 56(1) and 58 of the CA
[45] Mr Mitchell further submits that Judge Roberts erred by ruling that ss 56(1) and 58 of the CA could not provide a defence to the charge of intimidation. Specifically, he says the Judge erred by interpreting reasonable force to only constitute physical force.
[46] Section 58 provides:
Every one lawfully entitled to enter on any land for the exercise of any right of way or other easement or profit is justified in peaceably entering on the land for the purpose of exercising that right of way, easement, or profit:
provided that if any one so entering has notice that his or her right to use that way or easement, or to take that profit, is disputed by the person in possession of the land, an assault committed by that person, or by any person acting under his or her authority, for the purpose of making the person entering desist from entry, shall be deemed to be provoked by the person entering.
[47] Judge Roberts found the section did not apply:25
[57] Mr Ravelich, as amicus, had raised with me at the conclusion of the case a submission that I should consider the provisions of s 58. I indicated
24 Evidence Act, s 30.
25 Police v Mitchell, above n 1.
that I did not think that section applied as it refers to an assault committed. No assault has been committed by [the appellant] …
[48] Section 56(1), on the other hand, provides:
Every one in peaceable possession of any land or building, and every one lawfully assisting him or her or acting by his or her authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him or her therefrom, if he or she does not strike or do bodily harm to that person.
[49] Judge Roberts found this section did not apply either:
[57] … Mr Ravelich’s fall back was s 56, the defence of land or building. This provides that everyone in peaceable possession of any land or building and any anyone lawfully assisting him or her, or acting on his or her authority is justified in using reasonable force to prevent any person from trespassing.
[58] I stop there. I cannot see this section applying either, given the fact that it justifies use of reasonable force and none, I have found, was offered. I do not consider that [the appellant] is able to avail himself of that defence. Certainly I have determined the possession of an offensive weapon on the basis of the statutory defence that exists.
[50] By way of explanation, Mr Sullivan gave evidence at trial about the incident on 25 January 2016 which founded the charges relating to intimidation and possession of an offensive weapon:
Q. You said [the appellant] was quite abusive towards you? A. Yes.
Q. What sort of things was he saying to you?
A. So he’d say, “Pack your f-ing shit up, fuck off, I’m getting my boys around. All right I’m getting the boys around.” That was mentioned a few times. He pulled an axe out at one point and I was a bit nervous because obviously one of his hands is not – arms is not
100% so he was swinging this axe around you know quite close vicinities and at one point he hopped in his bus and drove the bus
over our fence line, and damaging his own bus as well.
…
Q. And when he mentioned to you, “I’ll bring the boys around” what did you think he meant by that? What did you understand by what he was saying?
A. My understanding was that obviously he wasn’t going to get what he
wanted so he was trying to be heavy-handed on me. Trying to scare me I guess, scare tactics.
Q. And how did that make you feel when he was saying that to you?
A. Pretty down because you know we’re only there to do a job … Quite
threatened.
[51] Mr Mitchell faced two charges for this incident: he was convicted of the intimidation charge but found not guilty of the possessing an offensive weapon charge. For the intimidation charge, the Judge focused on the words “I’m getting the boys around” and convicted Mr Mitchell:
[60] … Clearly, it is an indication that [the appellant] is looking to introduce muscle or back up to the situation that he is dealing with. I do not consider that there could be any other inference drawn from what he said, that he was looking to secure back up to secure his ultimate intention.
[52] Assault is defined in s 2(1) of the CA as including “threatening by an act or gesture to apply such force to the person of another”. Reasonable force can include the threat of force or violence. But Mr Mitchell was not convicted of an assault charge or one involving the use of force. Assuming that ss 56(1) and 58 (or either of them) could be invoked on the facts before the Judge if a charge alleging force, or the threatened application of force, had been brought, then they cannot apply to the charge of intimidation. The threats Mr Mitchell made had no imminence to them.
Adjournment application
[53] Mr Mitchell further submits he did not receive a fair trial in two ways. First, Judge Roberts erred in declining his adjournment application. Second, because he had to rely on an amicus.
[54] I will deal first with the adjournment application.
[55] The trial was set down for 5 December 2016 for three days. On
15 November 2016, Mr Mitchell applied to adjourn the trial due to health-related reasons. These reasons included neurological spinal and head injury caused by a motor vehicle accident in 2001, a heart condition, respiratory complications and sleep deprivation. A caregiver administers an oxygen machine to help Mr Mitchell sleep. He says he is not fully functional until late morning.
[56] Judge Roberts, on 24 November 2016, issued a minute in which he decided to hear the application for adjournment on 5 December 2016, the first day of trial
There was insufficient time to hear it before that date. The Judge stated it was important the application was properly heard, but notified the parties that they needed to be prepared for trial in the event the application was declined.
[57] On 5 December 2016, the Judge declined the adjournment application. He has not recorded his reasons in his judgment dated 8 December 2016.26 Nor are they recorded in the transcript. All he said in the judgment was:
[1] On Monday of this week I commenced a Judge alone trial. The defendant was Gordon Marcus Mitchell. Prior to commencing the hearing I had viewed [what] purported to be an application filed earlier last week seeking an adjournment. Ill-health was raised as one of the issues for [the appellant], as too was the inability to secure a number of witnesses he contended were necessary. The fact of the matter is that it is now 10 past 10 and [the appellant] is not present. I am intending to proceed with judgment delivery as I have a full day’s work there behind me.
[58] Mr Mitchell submits he was disadvantaged by this decision because he thought his application was going to be granted and he was not prepared to proceed with the trial. The Crown, on the other hand, submits that Mr Mitchell was not disadvantaged by the refusal to grant an adjournment as there was no miscarriage of justice.
[59] In my view, it cannot be said that Judge Roberts erred in declining the adjournment application. Rule 10.10 of the District Court Rules 2014 permits the Court to, if it is in the interests of justice, postpone or adjourn the trial for any time, to any place, and upon any terms it thinks just. This is a very wide discretion.
[60] Here, the Judge expressly said in his minute dated 24 November 2016 that the parties were to prepare for trial in the event the application was denied. Mr Mitchell cannot now complain that he was not ready. There was no guarantee that the application was going to be granted. Despite the issues raised by Mr Mitchell, he attended the trial and there is no indication that he suffered any health-related difficulties.
[61] As to the need to rely on the amicus, Mr Mitchell submits:
26 Police v Mitchell, above n 1.
(a) He was forced to allow the amicus to complete both his submissions and the cross-examination of the Crown witnesses, which disadvantaged him because the amicus did not have the same familiarity with the witnesses that he had;
(b)Opportunities arose during the cross-examination which could have been exploited if a competent advocate were present to assist him;
(c) He would have given more fulsome closing submissions than the amicus; and
(d)The Crown asked lots of leading questions of its witnesses and the amicus did not challenge them.
[62] These grounds of challenge centre around the fact that Mr Mitchell was self- represented. But he chose to self-represent. As the Court of Appeal stated in Misiuk v R, “[t]he fact that [the appellant] was not legally represented at trial did not of itself constitute a breach of [the appellant’s] right to a fair trial”.27
[63] I acknowledge that is not the end of the enquiry, however:28
[32] … an appeal Court must still examine the overall fairness of the trial. If there has been no breach of the appellant’s right to representation, the conviction will not be set aside unless the appellant can persuade the Court that the trial was unfair because the defence could not, in the particular case, have been adequately conducted without the assistance of counsel. The manner in which the appellant through his own choice or conduct came to be unrepresented may be relevant to the assessment of unfairness …
[64] Here, Mr Mitchell’s critique of the amicus is unwarranted. Mr Ravelich was amicus, not counsel for Mr Mitchell. Of course, Mr Mitchell had a superior knowledge of the background facts. But he chose to self-represent knowing his medical condition might impede his ability to present his case. It was open to him to provide the amicus with relevant questions. Which he did. The transcript shows he was given considerable assistance by Mr Ravelich, especially regarding the cross-
examination of Ms Kidd.
27 Misiuk v R [2011] NZCA 663 at [32].
[65] The transcript also shows that Mr Mitchell cross-examined eight of the nine witnesses for the Crown. The sole witness he did not cross-examine was Ms Kidd because he was legally prevented from doing so due to the restraining order.29
Mr Mitchell also led evidence from three out of five of his witnesses. For the other two witnesses, the Judge specifically checked with Mr Mitchell whether the amicus had covered everything. Mr Mitchell, therefore, conducted the large majority of his defence personally.
[66] I also note that as this was a Judge-alone trial, Mr Mitchell did not have a right to make closing submissions on the facts or evidence.30 Furthermore, he has not identified any relevant evidence that was not put before Judge Roberts because of him not personally questioning some of the witnesses. He has also failed to identify any specific submissions which should have been put before the Court, the absence of which meant he received an unfair trial. I accept that he may have wished to raise what he saw as potential defences under ss 56(1) and 58 of the CA earlier in the trial. But, as I have established, they have no relevance to the intimidation charge. No miscarriage of justice has resulted.
[67] In terms of leading questions, I am satisfied that some of the examples Mr Mitchell refers to are leading questions. But he has failed to point out how he was prejudiced from these questions. No miscarriage of justice arises here either.
[68] For these reasons, I am satisfied that the fact that Mr Mitchell was self- represented has not led to a breach of his right to a fair trial. I dismiss this ground of appeal.
Admission of HNZ evidence
[69] Mr Mitchell submits Judge Roberts erred by allowing the Crown to file evidence from HNZ, and erred by declining him leave to admit an email from HNZ.
He submits the latter was relevant to his defence under ss 56(1) and 58 of the CA.
29 Evidence Act, s 95(1)(a).
[70] The transcript records the interaction between Mr Mitchell and the Judge while Mr Mitchell was giving evidence:
MrMitchell: … I rung Teri Corr and I said, “Did you – why have you authorised Tanner Fencing to do that,” and she said, “Mr Mitchell, I did not authorise it. We did not authorise that Tanner Fencing.” And I –
The Court: Technically it’s hearsay. I can’t accept that as admissible
evidence.
MrMitchell: I’ve just been in contact with Mr – he’s, what’s her name – Teri Corr’s boss who said that he would send an email confirming that that – I don’t know if that’s admittable but –
The Court: Again, it’s not here at the moment –
Mr Mitchell: That’s right.
The Court: – and I don’t have to rule on it. But if it’s something that is contentious it’s unlikely that I will admit it.
Mr Mitchell: Well it’s not contentious, it’s just confirming that they didn’t
– and I think it’s already shown that Housing New Zealand didn’t pay for the fence, weren’t going to pay for the fence. So it might not be needed. That okay?
The Court: No I just need you to understand that even if an email arrives it may not be admissible.
[71] Mr Mitchell appears to allege that the Crown purposely omitted from a document the fact that HNZ would not support Ms Kidd with the construction of the fence as it would breach the Fencing Act 1978 (because Mr Mitchell had not given his consent). Mr Mitchell, as shown in the interaction above, wanted evidence in the form of an email admitted which would confirm HNZ’s refusal to support Ms Kidd. He says Judge Roberts wrongly declined him leave to admit the email. If the email was admitted, the Court would have clearly seen that his actions were justified under ss 56(1) and 58 of the CA.
[72] Again, I dismiss this ground of appeal. The email, if it exists, has no relevance to the charges Mr Mitchell was convicted of. For the reasons already established, ss 56(1) and 58 were not capable of providing a defence to the intimidation charge. It cannot be said that Judge Roberts erred in declining to admit the email.
Potential defence witness
[73] Mr Mitchell lastly submits that Judge Roberts erred by not permitting him to lead evidence from a potential defence witness.
[74] In his submissions, Mr Mitchell claims that Judge Roberts refused to hear a witness who had travelled up from Whanganui to give evidence on behalf of the defence confirming that the dispute in question began in late 2015 while Mr Mitchell was away.
[75] I dismiss this ground of appeal. Although Mr Mitchell does not identify the name of the witness, I see from the transcript that it was Mr Thompson Kiwikiwi. Nevertheless, Mr Mitchell does not identify how his evidence would have helped his defence. I, like the Judge, do not see its relevance. All Mr Mitchell submits is that the evidence would have helped establish the background to the restraining order. That is insufficient to establish an error which resulted in a miscarriage of justice.
Decision
[76] The appeal is dismissed.
Brewer J
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