Neil v Police

[2019] NZHC 230

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-297

[2019] NZHC 230

BETWEEN

RICKY VAUGHAN NEIL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

5 February 2019

Appearances:

Appellant in person

Y V Yelavich for Respondent

Judgment:

22 February 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 22 February 2019 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Kayes Fletcher Walker (Manukau) for Respondent

NEIL v POLICE [2019] NZHC 230 [22 February 2019]

Introduction

[1]    Mr Neil represents himself. He appeals his conviction on one charge of breaching a protection order, as found proved by Judge Andrée Wiltens on 15 February 2018,1 as well as the sentence handed down by Judge Blackie on 17 August 2018 (which was to come up for sentence if called upon). Mr Neil submits he should have been discharged without conviction.

[2]    I must allow the appeal against conviction if I am satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred;2 or for any other reason there has been a miscarriage of justice.3

[3]    In order to succeed on the appeal against sentence, Mr Neil must satisfy me there is an error in the sentence such that a different sentence should be imposed. This test will be satisfied if the sentence is manifestly excessive.4

Background

[4]    Mr Neil is subject to a final protection order imposed on 12 September 2013 in respect of his wife of 24 years and their three children. The tragic background to this case is that on 29 January 2017 one of their children committed suicide. The next day, there was an interaction between Mr Neil and a group which included his ex-wife. This led to a charge of Mr Neil breaching his protection order. It was dismissed at trial by Judge Andrée Wiltens.5

[5]    However, following that interaction Mr Neil went to a hotel where an event was being held to raise funds for the funeral of the deceased child. Mr Neil accepts he went into the hotel where his daughter, Pagan Neil, was present with others. He accepts he went to the microphone operating at the time and spoke through it to the assembled gathering. What he does not accept is that, in breach of the protection order,

1      R v Neil DC Manukau CRI-2017-057-000131, 15 February 2018.

2      Criminal Procedure Act 2011, s 232(2)(b).

3      “Miscarriage of justice” is defined in s 232(4) of the Criminal Procedure Act 2011.

4      See Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

5      R v Neil at [29].

he refused his daughter’s repeated request to leave the hotel. This was the basis of the charge on which Mr Neil was convicted.

The appeal against conviction

[6]    Mr Neil has quite a number of points on appeal. All are seen by him as important and significant. However, as a Judge I have a different perspective and so I will address the points I see as having significance.6

[7]    The main point is Mr Neil’s submission that the Judge should not have relied on the evidence of the three prosecution witnesses who gave evidence about the interaction between Pagan Neil and her father. Those witnesses were Pagan Neil herself, Mr Jordan Gartshore and Ms Sammy Lee Stowers. Mr Neil told me all three witnesses lied and that the evidence shows they were patently unreliable and should have been identified as such by the Judge.

[8]    On the face of the record, it was open for the Judge to accept the evidence of these witnesses. Ms Pagan Neil’s evidence, in summary, was directly to the effect she told Mr Neil several times he was not welcome and that he should leave, before he went to the microphone. Mr Neil refused to do so. Mr Gartshore corroborated this to an extent. He said he was speaking on the microphone, with Ms Neil close by, when Mr Neil approached, took the microphone and spoke to the crowd. He was unshaken in his evidence that he heard Ms Neil say, “you can’t be here, go away”. He accepted he did not hear any response from Mr Neil. However, he was sure that Ms Neil repeated herself about four times, adding that Mr Neil needed to leave.

[9]    Ms Stowers was a manager on duty in the bar. Ms Stowers did not hear or see the interaction between Ms Neil and Mr Neil described by Ms Neil and Mr Gartshore.

6      For Mr Neil’s benefit I make the following observations on other points he made. I do not accept Mr Neil’s submission that his ability to cross-examine was sufficiently compromised by the absence of a building layout plan to have created a real risk of affecting the outcome of his trial. The same applies to his submission that he was unwell on one day of the trial. I do not accept his submissions regarding CCTV footage of the venue, which a police constable elected not to seize as evidence on the basis he did not consider it to contain any relevant images. Mr Neil did not adduce any evidence to the effect that the evidence of the police officer on this point was wrong.

However, she was aware Mr Neil entered the bar because she heard him speak on the microphone and said that shortly before that occurred Ms Neil approached her with another member of the family and asked her to remove Mr Neil from the bar. Her evidence was she took them into her office to calm them down and then went and asked Mr Neil to leave. She said Mr Neil did not argue, was obliging, and they went out together.

[10]   Mr Neil’s submission is that the Judge should not have preferred the evidence of these witnesses to his own evidence. So far as his daughter is concerned, he told me she had previously admitted she lied about her interactions with him during a previous hearing involving other allegations. Mr Neil, who was assisted by Amicus Curiae at the trial, said he expected the Amicus to have summonsed a police officer who he thought would give evidence that Ms Neil had admitted her earlier perjury to him. However, the Amicus did not summons the police officer and he did not come to give evidence.

[11]   Ms Yelavich for the Crown explained to me that a pre-trial matter dealt with by Judge Andrée Wiltens on the day the trial started was an application to cross- examine Ms Neil on this allegation. The Judge ruled against the application because he did not find it substantiated. Ms Yelavich’s understanding is that the police officer was not called to give evidence at the voir dire because upon inquiry the Amicus did not think anything would be gained by him doing so.

[12]   Without evidence, I cannot say one way or the other whether this is an issue which might have led to error on the part of the trial Judge. Mr Neil has not put any evidence before me as to what the police officer might have said. The trial Judge was aware of the issue and dismissed it as having no sufficient evidential foundation. However, it is clear from his reasons for convicting Mr Neil that the Judge was aware that Ms Neil was not an unbiased witness because of her hostility towards Mr Neil. The Judge’s decision to accept her evidence was based substantially on the corroboration offered by the other two witnesses.

[13]   So far as Mr Gartshore is concerned, Mr Neil’s submission is that his reliability is seriously in question because of estimates of distance and time he gave. There is

nothing in that point. Witnesses asked to report such things as the distance of one person from another in a crowded venue at a particular time vary notoriously; so do estimates of time going to how long a person spoke or was present. The Judge was aware of inconsistencies and found them to be unimportant.

[14]   As to Ms Stowers’s evidence, Mr Neil says he was unaware she was known by another name and had dishonesty convictions under that name. This impacted on her credibility and had the Judge known of it he would not have placed weight on her evidence. Ms Yelavich confirmed that, unknown to the prosecution at the time of the trial, Ms Stowers had been convicted under a different name in 2012 of six charges of misleading a social welfare officer. The sentence was 325 hours’ community work.

[15]   Ms Yelavich’s submission, which I accept, is that even if application had been made and leave given to cross-examine Ms Stowers about these convictions, it would have made no difference in the trial. Ms Stowers did not give evidence of the essential elements of the offence. She was not present at  the  time Ms Neil  says  she asked Mr Neil repeatedly to leave and Mr Neil refused. Ms Stowers’s evidence is corroborative only to the effect of Ms Neil being clearly upset about her father being present and her request to Ms Stowers to get Mr Neil to leave. Mr Neil denied he had any contact with Ms Stowers, and the Judge made reference to Ms Neil’s evidence that she saw one of the duty managers escort Mr Neil out.7

[16]   I do not find that Mr Neil’s criticisms of these witnesses sustain his submission that the Judge erred in accepting their evidence.

Decision

[17]   Judge Andrée Wiltens had the opportunity to see and hear the witnesses. He was unimpressed, for the reasons he gave, with the evidence given by Mr Neil. He did not accept it. The Judge was aware of the fraught history between Mr Neil and his family and made allowances for it. In short, he accepted Mr Neil had refused his daughter’s repeated demand that he leave because he wished to address the crowd

7      R v Neil DC Manukau CRI-2017-057-000131, 15 February 2018 at [32].

through the microphone, which he then did before leaving amicably with Ms Stowers. Mr Neil, because he denied any request to leave, did not offer a reasonable excuse for the behaviour the Judge found proved, and the Judge did not find in the circumstances there was a reasonable excuse.

[18]   There is one final legal element which must be addressed. Mr Neil maintained in evidence he had never been served with a copy of the final protection order and so did not know the prohibitions on him. The Judge had no doubt this was wrong and gave reasons, including:8

-The Final Protection Order was produced by Consent

-Mr Neil was served with the Temporary Order

-Mr Neil disputed in the Family Court the need for a Final Order, but he left in disgust and as a sign of his disapproval prior to the proceedings being completed as he was firmly of the opinion that a Final Order was inevitably going to be made despite his objections

-Mr Neil has been prosecuted for breach of the Final Order on at least two occasions. Judge McIlraith gave a decision in respect of one of those hearings where the full extent of the restrictions on Mr Neil’s conduct was elaborated in his presence. “I am of the view that disclosure in relation to both those earlier cases and this present prosecution must have included the actual document – and I find it extremely unlikely that Mr Neil did not peruse that as he certainly was aware what various witnesses had said in their statements to the police”

[19]   Were it not for Mr Neil’s submission that he should have been discharged without conviction, I would dismiss the appeal against conviction because there is no discernible error which could give rise to a miscarriage of justice. But, as I will come to, the possibility of a discharge without conviction being available means I must take a different approach.

The appeal against sentence

[20]   Mr Neil submits he should have been discharged without conviction. It is accepted that Judge Andrée Wiltens, having delivered his verdicts, raised the possibility of a discharge without conviction. However, Judge Andrée Wiltens was

8      R v Neil DC Manukau CRI-2017-057-000131, 15 February 2018 at [17].

not the sentencing Judge. He was overseas at the sentencing date. Judge Blackie sentenced Mr Neil. The Amicus Curiae  made  submissions  to  Judge  Blackie  on Mr Neil’s behalf. There was no application for a discharge without conviction.

[21]   Mr Neil told me there is a serious consequence for him of the conviction. He told me it is classified as a family violence conviction and it is preventing him from obtaining a visa for his current partner’s daughter to enter New Zealand. I cannot make any comment on that in the absence of evidence. Furthermore, there can be no appeal against the sentence of Judge Blackie on the basis of a refusal to grant a discharge without conviction because Judge Blackie was not asked to discharge without conviction.

[22]   I discussed with Mr Neil whether, if given the chance, he would be able to produce evidence of the consequence he told me about. Mr Neil said he could, and would pursue such an application in the District Court if given the opportunity. It seems to me, and the Crown accepts, that in the circumstances set out above, the most striking being the death by suicide of a child the day before the incident, the breach of the protection order is very much at the lower end of the scale. A proven consequence, or the real risk of a consequence, of the sort Mr Neil has identified might cross the    s 106 Criminal Procedure Act 2011 threshold of being out of all proportion to the gravity of the offending.

[23]   In my view, Mr Neil should have been given the opportunity to apply to Judge Blackie for a discharge without conviction. He did not make the application and I cannot say on the evidence that was a result of an informed decision on his part. I have decided it is in the interests of justice in this case to give Mr Neil another chance to make the application.

Result

[24]   Judge Andrée Wiltens’s finding that Mr Neil was guilty of the charge is upheld. There will be no re-trial.

[25]   The conviction entered by Judge Blackie on the charge is set aside to enable Mr Neil to apply for discharge without conviction.

[26]The sentence imposed by Judge Blackie is also set aside for the same reason.

[27]   The case is remitted to the District Court for consideration of whether Mr Neil should be discharged without conviction or convicted and re-sentenced.

Brewer J