Mitchell v Police
[2019] NZHC 178
•15 February 2019
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2018-425-000015
CRI-2018-425-000016 [2019] NZHC 178
BETWEEN NEVILLE MORGAN MITCHELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 February 2019 Appearances:
Appellant in person
S N McKenzie for the Respondent
Judgment:
15 February 2019
JUDGMENT OF NATION J
Introduction
[1] Mr Mitchell is now 62 years of age. On 10 April 2018, he pleaded guilty to a charge of disorderly behaviour. He was convicted and sentenced to a fine of $200 plus Court costs of $130, to be paid at the rate of $5 a week.
[2] At a Judge alone defended hearing on 8 and 9 May 2018, Mr Mitchell was found guilty of assault. He was convicted and sentenced to 40 hours’ community work, the Judge considering the appropriate sentence was the least number of community work hours that he could impose. The Judge also imposed nine months’ supervision, a sentence the Judge said he wanted to impose to help Mr Mitchell. There were also special conditions that Mr Mitchell was to attend and complete the Positive Lifestyle Programme to the satisfaction of a probation officer and service provider,
MITCHELL v POLICE [2019] NZHC 178 [15 February 2019]
and to undertake assessment, counselling and treatment for such other offending issues as directed by and to the satisfaction of a probation officer.
[3] On 5 June 2018, Mr Mitchell filed an appeal against the convictions and sentences for both sets of offending on the grounds there were errors in fact and law.
[4] On 5 November 2018, Dunningham J issued a minute rescheduling the date for the hearing of an appeal from 11 December 2018 and made timetabling directions. One of those directions was that Mr Mitchell was to file his points on appeal by 30 November 2018. Dunningham J also directed:
As this appeal has been on foot for some time, and both statutory and Court ordered timetabling directions have not been complied with by the appellant, I direct that if the direction [just referred to] is not complied with by 30 November 2018, the appeal is hereby dismissed pursuant to s 338 of the Criminal Procedure Act 2011.
[5] Pursuant to that minute, on 8 November 2018, Mr Mitchell’s appeal was set down for hearing on 4 February 2019.
[6] Mr Mitchell did not file points on appeal by 30 November 2018. A document with 17 paragraphs, that might have been considered points of appeal, was filed with the Court around 25 January 2019.
[7] The proceedings were called before the Court on 4 February 2019. When the proceedings were first called, both Ms McKenzie for the respondent and Mr Mitchell indicated that, given what was set out in the points on appeal, they were not in a position to proceed.
[8] I stood the matter down so that I could discuss the situation further to clarify on what basis the appeal might proceed and any directions that would have to be given if the appeal was to proceed further or whether, in light of the Judge’s directions of 5 November 2018, the appeal had to be treated as dismissed.
Section 338 Criminal Procedure Act 2011 (CPA)
[9]This states:
338 Power of appeal court to dismiss appeal for non-compliance with procedural orders
(1)Despite anything in subparts 2 to 10, an appeal court may dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders fixed for the appeal.
(2)Before dismissing an appeal under subsection (1), the appeal court must give the appellant 10 working days’ notice of its intention to dismiss the appeal.
(3)The appeal court must not dismiss an appeal under subsection (1) if the appellant, after having been given notice under subsection (2), rectifies the non-compliance within the notice period given by the court.
(4)A reference in any enactment other than this section to the abandonment of an appeal under this Act must, unless the context otherwise requires, be read as including a reference to a dismissal under subsection (1).
(5)In this section, appeal includes an application for leave to appeal.
Background
[10] On 8 June 2017, Mr Mitchell went to the premises of a Wanaka physiotherapy business wanting to discuss a complaint with the owner. He was taken into a room to discuss the complaint. The Police alleged the discussion became heated. Another person (the victim) came into the room to help usher Mr Mitchell from the premises. While doing this, the Police alleged Mr Mitchell assaulted the victim by pushing at him. Mr Mitchell was charged with assault under the Summary Offences Act 1981.
[11] On 7 November 2017, Mr Mitchell was at the Maui Camper depot in Frankton. The Police allege he became threatening and abusive with a staff member, refused to hand over keys to a vehicle he was complaining about and pushed a female victim out of the way. He was charged with assault and behaving in a disorderly manner under the Summary Offences Act 1981. He pleaded not guilty to those charges.
[12] On 10 April 2018, at a hearing before Judge Callaghan in the District Court, with Mr Mitchell represented by counsel, the charge of assault in connection with the Maui Camper incident was withdrawn by leave. Mr Mitchell entered a plea of guilty to the charge of behaving in a disorderly manner. The Judge remanded him for sentence on 8 May 2018 when the Court was to deal with other matters. The Judge noted:
10.00 am has medical issues re brain bleed. Counsel asked to file memo with supporting information. Are for sentence to follow other matters … - apology letter??
[13] On 8 May 2018, there was a defended hearing before another Judge in the District Court in relation to the alleged assault at the Wanaka physiotherapy clinic. Mr Mitchell did not give evidence or call any witnesses for the defence at the trial. The hearing was adjourned to 9 May 2018 when the Judge gave his decision finding the charge proven. He then imposed the sentences already referred to for the assault and the charge of disorderly behaviour to which Mr Mitchell had already pleaded guilty. Mr Mitchell was represented at that time by Mr Mooney.
[14] In June 2018, Mr Mitchell filed his notice of appeal against both convictions and sentences. The notice of appeal was filed by Ms S Vidal as counsel.
[15] On 26 September 2018, the Court issued a notice to Mr Mitchell, care of Ms Vidal, advising the appeal would be heard at the High Court in Invercargill on 23 October 2018.
[16] On 19 October 2018, Ms Vidal filed a memorandum for the Court. In it she said counsel had a provisional grant of legal aid to assess whether there was a basis to advance Mr Mitchell’s appeal, as he had different trial counsel. She advised that she reviewed the conviction and sentence decisions and could not discern a basis upon which to advance the appeal. She said Mr Mitchell had raised separate and distinct issues in regard to the competency of counsel, and a procedural matter that was not apparent on the decisions of the Court. Ms Vidal said she had explained the steps Mr Mitchell would have to take as to waiver of legal professional privilege and the filing of affidavits. In the memorandum, she confirmed that Mr Mitchell wished to have the opportunity to do this and did not wish to abandon the appeal. She sought leave to
withdraw but asked for an adjournment of the appeal hearing to enable Mr Mitchell to prepare and file those documents. She said he would be doing this on his own behalf as he would be a self-represented litigant.
[17] On 23 October 2018, Dunningham J issued a minute following a hearing on 23 October 2018. She referred to the memorandum that had been filed by Ms Vidal and adjourned the appeal for hearing on 11 December 2018 at 10.00 am. She directed:
(1) the appellant is to file his points on appeal (which means the specific points he wishes to make about why the appeal should be allowed), and, if he is pursuing a challenge to counsel competence, a waiver of privilege (which means a document confirming that his lawyer at the District Court hearing can discuss the legal advice he gave the appellant about the conduct of the case with the respondent’s lawyers), by Friday, 2 November 2018;
(2) the appellant is to file and serve his submissions by 20 November 2018;
(3) the respondent is to file and serve its submissions by 27 November 2018.
Dunningham J also granted leave to Ms Vidal to withdraw as counsel.
[18] On 9 October 2018, counsel for the respondent, Ms McKenzie, filed the respondent’s submissions for the appeal.
[19] On 31 October 2018, in a letter headed to “Your Honour Justice Dunningham”, Mr Mitchell began by saying he had been given until 2 November 2018 to submit bullet points for an appeal. He referred to difficulties he was facing in completing those points on appeal and sought an extension of time for doing so. He asked for a rescheduling of the hearing on 11 December 2018 because he had arranged to be overseas at that time. He referred to various other matters.
[20]On 5 November 2018, Dunningham J issued a minute which I set out in full:
[1] The Court is in receipt of a lengthy letter from the appellant, Mr Mitchell, which outlines his personal history, health issues, and his dealings with his solicitors and others in relation to the charges and subsequent convictions giving rise to this appeal.
[2] What is relevant from the Court’s perspective is that Mr Mitchell is seeking an extension of the direction I made on 23 October 2018, requesting Mr Mitchell is to file his points on appeal, and, if he is pursuing counsel incompetence as a ground of appeal to file a waiver of privilege. Mr Mitchell
also seeks a rescheduling of the hearing of the appeal on 11 December 2018 as he has prior travel plans for that date.
[3]The reasons for seeking the extension include the following:
(a) Mr Mitchell is very unwell;
(b) he is still in communication with his legal aid case worker and he appears to understand there is still the possibility of legal aid funding;
(c) he has an appointment with a community law case worker on 7 November 2018 at Wanaka, and his ability to comply with the direction appears to be dependent, in part, on receiving assistance or advice from that person.
[4] In light of the myriad of issues that Mr Mitchell is facing, the proposed hearing of the appeal on 11 December 2018 is vacated. I make the following amended timetabling directions:
(a) the appellant is to comply with the direction at [3](a) of my minute dated 23 October 2018,1 by 30 November 2018;
(b) if it is complied with then the appellant is to file and serve his submissions by 25 January 2019;
(c) the respondent is to file and serve its submissions by 1 February 2019;
(d) the appeal is to be set down for hearing as soon as practicable thereafter.
[5] As this appeal has been on foot for some time, and both statutory and Court ordered timetabling directions have not been complied with by the appellant, I direct that if the direction at [5](a) above is not complied with by 30 November 2018, the appeal is hereby dismissed pursuant to s 338 of the Criminal Procedure Act 2011.
[21] Court records confirm that a copy of the minute was sent to Mr Mitchell and to the respondent. The copy for Mr Mitchell was sent to him at the address he had used in writing to the Court, PO Box 58, Wanaka.
[22] On 8 November 2018, the Court sent to both Mr Mitchell and the Crown notice of the new date of hearing for the appeal on 4 February 2019. That notice was sent to Mr Mitchell’s address at his PO Box and posted on 8 November 2018.
1 And reissued 25 October 2018.
[23] On 27 November 2018, the High Court at Christchurch sent Mr Mitchell a letter referring to Dunningham J’s minute of 23 October 2018 and the earlier timetabling directions for the filing of submissions. The letter also advised “As per the Judge’s minute dated 5th November, if the Court is [sic] timetabling directions have not been complied with by the 30th November 2018 the appeal will be dismissed”.
[24] It is evident from the above summary that Mr Mitchell had failed to comply with timetabling directions set out in Dunningham J’s minute of 23 October 2018 because he had not filed his points on appeal by Friday 2 November 2018. The requirement in s 338(1) CPA for the dismissal of the appeal had thus been met. He had also not filed submissions by 25 January 2019.
[25] In her minute of 5 November 2018, Dunningham J gave Mr Mitchell notice of the Court’s intention to dismiss the appeal after 30 November 2018 if he had not filed his points on appeal by that time. The High Court had thus given Mr Mitchell 10 working days’ notice of its intention to dismiss the appeal, as referred to in s 338(2) CPA.
[26] Mr Mitchell had not, by 30 November 2018, rectified the omission to file points on appeal so he had not rectified the non-compliance within the notice period given by the Court. The requirements for dismissal, set out in s 338(3), had thus been met.
[27] Enquiries of Court Registry staff indicate that, in the latter half of December 2018, there were discussions between Registry staff in Christchurch and Mr Mitchell in which Mr Mitchell was told he needed to file submissions. On 17 December 2018, Mr Mitchell emailed Registry staff and asked the Court to send him a number of documents. It appears Court staff did not discuss with him his failure to file his points on appeal or the fact that, in accordance with Dunningham J’s minute of 5 November 2018, his appeal was dismissed.
[28] On 8 January 2019, the High Court sent to Mr Mitchell copies of the documents the Court was holding which the Registry considered he was entitled to relevant to his appeal. Those documents comprised:
(1) the transcript of evidence given at the hearing on 8 June 2018;
(2) particulars of witnesses who had given evidence at the hearing;
(3) a brief of evidence for a witness, Constable Bruce McLean, which, by consent, the Constable was permitted to read;
(4) a transcript of the working copy of the DVD record of Mr Mitchell’s interview with Mr McLean that took place on 8 June 2017;
(5) a copy of the Judge’s oral decision of 9 June 2018 finding the charge of assault proven; and
(6) a copy of the Judge’s sentencing notes of 9 May 2018.
[29] Later in January 2019, Mr Mitchell filed the document with 17 paragraphs. I refer to that document as ‘points on appeal’. That does not mean the document properly or adequately set out matters which could properly be advanced as grounds for the appeal he intended to pursue.
[30] No further submissions were filed by either Mr Mitchell or the Crown before the hearing on 4 February 2019. Ms McKenzie said the Crown had proceeded on the basis the appeal would have been dismissed because of the failure to file points on appeal.
Mr Mitchell’s points on appeal and discussion of 4 February 2019
[31] While that could be considered the end of the matter, out of fairness to Mr Mitchell and to establish just what directions might be needed if I was to treat the appeal as still being before the Court, I discussed various matters referred to in his points on appeal. Mr Mitchell had the support of a Baptist Minister, Mr Jordan, during the hearing and at several points deferred to him before responding.
[32] It was apparent from Mr Mitchell’s document that points he wished to make in pursuing an appeal, based on the record of evidence from the trial and the Judge’s decision, included the following:
(1) he considered the statements made by Constable McLean were misleading and at times non-factual. (He does not say how that was so or how this was relevant to the decision the Judge came to.);
(2) the Judge asked questions and lead the witnesses, the victim and the physiotherapist who had given evidence;
(3) the Judge had made comments in his initial decision based on what he had seen and heard in Mr Mitchell’s Police interview that Mr Mitchell was “consumed by his dispute with ACC”, that Mr Mitchell’s relationship with ACC was “somewhat tense to say the least” and that Mr Mitchell has longstanding issues with the ACC and appeared to be battling with them on multiple fronts, having gone to the length of involving the then Minister of ACC;
Mr Mitchell contends the Judge’s comments about ACC were “unlawful and inappropriate”. In that connection, he also sought to provide the Court with a letter from IRD as to amounts he said he had paid ACC;
(4) Mr Mitchell said he wished to revisit evidence given by the victim and the physiotherapist but confirmed to me that, by this, he wished to make submissions about their evidence and was not seeking to put before the Court new evidence as to what the witnesses had said in their evidence at trial; and
(5) the transcript of the Court hearing was not complete and did not include a transcript of all comments made by the Judge. In this regard, Ms McKenzie noted that, as is usually the case, the transcript may well not have included transcript of discussions that took place between the Judge and either the prosecutor or defence counsel and suggested that, if the appeal was going to proceed, it might be appropriate for the Court to require a transcript of such a discussion.
[33] I did not generally discuss with Mr Mitchell whether there was any real merit in these above points or whether, even if there was, they would be sufficient for his appeal to succeed.
[34] Mr Mitchell’s points included various paragraphs which appeared to relate to the way in which the incident concerning the Maui Camper assault/disorderly behaviour charges were investigated. In particular, there was a reference to a failure of the Police to obtain video evidence about something that might have occurred at the Queenstown International Airport.
[35] Mr Mitchell confirmed that he had entered a plea of guilty to the disorderly behaviour charge with counsel present after the related assault charge in connection with that incident had been dropped. Mr Mitchell said he had done this on the basis there would be no penalty on the charge to which he pleaded guilty. I pointed out that the record did not support this because, with counsel present, after pleading guilty, he was remanded to be sentenced on that matter when the other charge he was facing was dealt with. This led to Mr Mitchell telling me that he was not seriously concerned with his conviction or the penalty imposed on that charge and that he would not be proceeding with an appeal either as to the conviction following his guilty plea on the charge of disorderly behaviour or the penalty by way of fine that was imposed on that charge. After discussing the matter with Mr Jordan, Mr Mitchell confirmed that, if that appeal had not already been dismissed, then he was abandoning it.
[36] There were a number of other points which Mr Mitchell indicated he wished to advance in support of the appeal against his conviction for the assault at the Wanaka physiotherapy clinic.
[37] Mr Mitchell complained that the Judge had prohibited him from, through counsel, asking questions or putting before the Court information which I understood relates to the victim’s alleged involvement in other incidents of violence, perhaps in a domestic relationship, that had occurred a number of years before the incident at the physiotherapy clinic. He had also wanted to cross-examine or seek to ask questions about alleged incidents that had occurred with the victim after the incident at the
physiotherapy clinic and information which Mr Mitchell wished to put before the Court as to how, ultimately, he had come to serve a trespass notice on the victim.
[38] Mr Mitchell claimed the Judge had discussed whether or not such questioning would be permitted with the Police prosecutor and Mr Mitchell’s counsel before the hearing when Mr Mitchell had not been present. It seemed it may have been agreed there would be no questions or evidence as to these matters but, from Mr Mitchell’s point of view, this would have been because the Judge had effectively ruled that this was how the hearing would proceed. There is no record of any ruling in this regard. If Mr Mitchell’s counsel was effectively prohibited from putting before the Court, through cross-examination or otherwise, information which was relevant and if this had the real potential to unfairly prejudice Mr Mitchell with his defence, then it would have been necessary for evidence in that regard to be put before the Court. If Mr Mitchell’s counsel had agreed to matters proceeding in that way, Mr Mitchell would have had to provide Mr Mooney with a waiver of privilege. Ms Vidal advised him this is what he would have to do.
[39] In his points of appeal, Mr Mitchell was also critical of the fact the Judge had not allowed the defence to call evidence from a Mr Vink, a Police officer who it seems had also arrived at the Wanaka physiotherapy clinic following a call to the Police from people at the clinic. In his points of appeal, Mr Mitchell referred to his counsel having served a subpoena on Mr Vink but the Judge deciding, after discussions with counsel and the prosecutor, that Mr Vink would not be required to give evidence. It seems that, amongst other matters, Mr Mitchell wished to question Mr Vink about why he had not obtained statements from other people at the clinic who might have seen what had happened.
[40] In discussing the matter with me, Mr Mitchell however referred to Mr Mooney having Mr Mitchell sign a document by which it seemed he would be accepting that Mr Vink was not to give evidence.
[41] At present, there is no record of a ruling on this point. That being the case, if the appeal were to continue, as well as perhaps seeking to put before the Court evidence by way of affidavit from Mr Mooney, Mr Mitchell would have to provide Mr
Mooney with a document waiving privilege in respect of all communications between himself and Mr Mooney with regard to the conduct of the hearing.
[42] In his points on appeal, Mr Mitchell made a number of statements attacking the integrity of the prosecutor who appeared for the Police at the hearing. He referred to the way in which a transcript was produced of the working copy of the DVD interview as being produced by the prosecutor “to mislead the Court to pervert the court of justice in tampering with evidence”. He referred to the Judge being “cohesive” [sic] with this.
[43] Mr Mitchell also referred to the Judge’s alleged ill-health and also made complaints about another Judge before whom he had appeared at some stage during the proceedings. That other Judge had recused himself because of statements Mr Mitchell made about him and had taken no part in any of the decisions which would have been at issue on appeal. Mr Mitchell accepted that the poor health or otherwise of the Judge who presided over the hearing would not be relevant to any consideration of whether, on the record of what happened at the hearing, Mr Mitchell’s appeal had any merit. Again, after discussion with his support person, Mr Mitchell said that, if the appeal were to continue, he would not be seeking to refer to these matters.
[44] In his points on appeal, Mr Mitchell also complained that he had not been able to put before the Court evidence about discussions which he claimed had taken place with the Police that might have led to a resolution of all matters in a way that would have avoided the conviction and sentence he is now subject to. It is readily understandable that, if any such discussions did not lead to resolution, evidence as to those discussions would likely have been irrelevant and thus inadmissible on the hearing of the appeal. As matters stand, there was no evidence before the High Court as to those discussions which this Court would have been able to consider on the hearing of the appeal.
[45] Mr Mitchell also sent to the Court with his points on appeal various documents he wanted the Court to consider but which were not part of the evidence from the District Court trial.
[46] I have referred to all the above matters not as a consideration of the merits of the appeal but to provide information as to the context in which I have considered whether the appeal has been dismissed and thus deemed to have been abandoned, pursuant to Dunningham J’s minute and s 338 CPA. I have considered this necessary because of Mr Mitchell’s statement that, if the appeal is treated as dismissed, he would be taking the matter to the Supreme Court.
Conclusion
[47] Against that background, I find that Mr Mitchell’s appeal has been dismissed. Pursuant to s 338(4), the dismissal of the appeal, as directed by Dunningham J, is deemed to be an abandonment of Mr Mitchell’s appeal.
[48] Under s 339 CPA, Mr Mitchell would have had a right to apply to the Court of Appeal for leave to appeal against the dismissal. Because of the delay that has clearly occurred, Mr Mitchell would also have to apply for leave to extend the time for such an appeal. Given Mr Mitchell’s wish to pursue various points on appeal that would require both the admission of new evidence and a waiver of privilege, such an application would have to be supported by affidavit evidence as to the steps he has taken in this regard and the new affidavit evidence he is wishing to put before the Court. Mr Mitchell should not think that anything I have said in this judgment indicates that, if he does take these steps, his application to extend the time for an appeal and an appeal against dismissal would be successful.
[49] The discussion I had with Mr Mitchell concluded with his referring to the way he was in a poor state of health at the time relevant events had occurred and the way this had affected various people he had been involved with. He apologised for that. With the support available to him, Mr Mitchell will need to consider carefully what might be gained from attempting to re-open an appeal in respect of the conviction and sentence that remain in place and all that he would have to do to persuade the Court of Appeal that he should have the opportunity to do so. I also record that he was clear in the discussion before me that he was not now wishing to pursue an appeal in respect of his conviction and sentence on the disorderly behaviour charge.
[50] As matters stand, Mr Mitchell’s appeal has thus been dismissed and is deemed to have been abandoned. That being the case, he is subject to the sentences imposed on 9 May 2018. Mr Mitchell must report to the Department of Corrections at the Wanaka Police Station at 1.00 pm on Wednesday 27 February 2019.
Solicitors:
Preston Russell Law, Invercargill
Copy to:
Mr N M Mitchell.
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