Mitchell v Police - [2017] NZHC 3143

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mitchell v Police

Details

AGLC: Mitchell v Police [2017] NZHC 3143
Case: [2017] NZHC 3143
Decision Date: 14 December 2017

CaseChat Overview and Summary

The appellant, Mr Mitchell, appealed against his convictions for contravening a restraining order and intimidation. He was self-represented at trial and the Court was assisted by an amicus curiae, Mr Ravelich. The appeal against conviction was dismissed. The appellant argued that the trial Judge erred in taking into account admissions made by him while seated next to the amicus at the bar in relation to two of the restraining order charges. The Court held that the Judge could accept the appellant’s statements as evidence admissible in the trial under the Evidence Act 2006. The appellant also argued that the Judge erred by ruling that sections 56(1) and 58 of the Crimes Act 1961 could not provide a defence to the charge of intimidation. The Court held that the sections did not apply to the charge of intimidation. The Court further held that there was no miscarriage of justice in declining the adjournment application or in declining to admit evidence from Housing New Zealand or a potential defence witness. The appeal against conviction was dismissed.

Orders