O'Neill v Police
[2023] NZHC 942
•27 April 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2022-419-000100
[2023] NZHC 942
BETWEEN ZANE SIMON O’NEILL
Applicant/Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 April 2023 (by VMR) Appearances:
Appellant in person
P Noorland for Respondent
Judgment:
27 April 2023
JUDGMENT OF VENNING J
Appeal against conviction and sentence
This judgment was delivered by me on 27 April 2023 at 2.15 pm.
Registrar/Deputy Registrar
Date……………
Solicitors: Hamilton Legal, Hamilton Copy to: Appellant
O’NEILL v NEW ZEALAND POLICE [2023] NZHC 942 [27 April 2023]
[1] Following a judge-alone trial in the District Court at Hamilton, Zane O’Neill was convicted of intentionally failing to comply with the Covid-19 Public Health Response (Alert Level Requirements) Order (No. 12) 2021 by attending a gathering in an outdoor place, namely Claudelands Park, Hamilton, an Alert Level 3 area.1
[2]Judge B A Crowley sentenced Mr O’Neill to 40 hours community work.2
[3] Mr O’Neill seeks leave to appeal his conviction and sentence. Leave is required as the appeals are out of time.
[4] Mr O’Neill represents himself. The notice of appeal was filed out of time on 13 December 2022, some 57 working days out of time. The respondent opposes leave being granted on the basis the proposed appeal is without merit. However, the period of delay is not extensive and the Police are not prejudiced by the delay. As Mr O’Neill represents himself I extend the time for the appeal to be filed.
District Court hearing
[5] The prosecution called evidence from Scott Middlemiss, a detective in the New Zealand Police; Ian Archbold, a police sergeant; and Olivia Davies, a police constable. All had been present at the gathering at Claudelands Park. Detective Middlemiss produced copies of the applicable Orders in force at the time and other photographic evidence and exhibits. The other officers had spoken to Mr O’Neill and obtained his details.
[6] The evidence called by the Police established that a protest was arranged to be held at Claudelands Park on Heaphy Terrace, Hamilton at about 11.00 am on Saturday, 16 October 2021. The organiser of the protest, a Mr Ferris, was standing on or about the back of a black coloured Toyota Hilux ute with its registration plates taped over. There were large speakers on the back with a banner reading “Hands off our Freedoms & Rights”.
1 New Zealand Police v O’Neill [2022] NZDC 17936.
2 New Zealand Police v O’Neill [2022] NZDC 17887.
[7] Mr Ferris addressed the crowd of approximately 1,000 people for about 25 minutes. While he was addressing the crowd Mr O’Neill was observed to be standing just to his side holding a large cardboard protest sign, waving in the direction of the crowd and also at passing cars on Heaphy Terrace. The sign stated “You can vax the entire planet but you can't feed the starving.”
[8] After Mr Ferris had finished speaking Mr O’Neill moved towards the Waikato Settlement Centre on the Boundary Road side of Claudelands Park. The Centre was being used as a Covid vaccination clinic to encourage ethnic communities to be vaccinated as part of the Super Saturday vaccination drive. The Police spoke to Mr O’Neill, obtained his details and he ultimately moved on. No charges were laid in relation to Mr O’Neill’s actions after the gathering.
[9] When spoken to by the Police Mr O’Neill declined to comment other than to say he was not aware that Hamilton was an Alert Level 3 area as he does not watch television.
[10] Mr O’Neill elected not to give evidence but on a number of occasions made submissions to the Judge.
The appeal
[11] At the outset of the appeal hearing Mr O’Neill sought to challenge the prosecution and conviction referring to his status and the issue of his legal personality. He sought to have the prosecutor identify the defendant. As I advised Mr O’Neill, it is not for him to ask the prosecution questions. Such specious points and arguments about living and dead entities and corporations in the context of individuals are a legal nonsense and have been rejected by the Courts in the past.3
[12] Mr O’Neill then submitted that he was wrongfully charged. His actions on the day never hurt anyone and no-one lost anything. He notes that outdoor settings were was advised by the Ministry of Health. He also noted that the Police evidence did not confirm he had maintained social distancing and that he was wearing a face covering.
3 Bracken v R [2022] NZCA 237.
Mr O’Neill also submitted there was no evidence from any independent witnesses at the protest to say that he was part of the organised group. The operation was mainly about the man on the back of the black ute. Mr O’Neill says he travelled freely to Claudelands Park in Hamilton. It was his right to travel freely and to express his freedom of speech and expression under the New Zealand Bill of Rights Act 1990.
[13] Mr O’Neill then submitted that the Ministry of Health were not able to confirm the existence of Covid-19 and the drive for vacations overlooked the harm the vaccinations had caused.
[14] Mr O’Neill also made a submission that there is no correlation between the summary code and the Covid-19 Public Health response charge. The short answer to that is that summary code is not an element of the offence. The offence is under s 26(1) of the Act.
[15] In his written submissions Mr O’Neill submitted that an order is a disallowable instrument as defined in the Legislation Act. His submission seemed to be that as a disallowable instrument it was an order that could not be enforced. Mr O’Neill then referred to Magna Carta and other District court cases where similar prosecutions were apparently dismissed.
Principles to apply on an appeal against conviction
[16] As an appeal against conviction s 232 of the Criminal Procedure Act 2011 applies. The Court must allow the appeal if the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred or, a miscarriage of justice has otherwise occurred for any other reason. Otherwise the Court must dismiss the appeal.
[17] A miscarriage of justice is any error, irregularity or occurrence in or in relation to or affecting the trial that:
(a)has created a real risk the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[18] A preliminary matter arises. In his notice of appeal Mr O’Neill also referred to the fact he was “incompetent self representing” and he was “not given a chance for counsel”. However, the issue of representation was raised by the Judge in the course of the hearing. The following exchange was recorded:
QDo you need further advice? I also just want to check with you that you know have the right to a lawyer and you do not want to exercise that right?
A I’m happy being me Your Honour.
Q.Well that is your complete right and there is no problem with that. Are you happy with that process which is the traditional process trials take and I have tried to explain to you why they take that course because it is the police that have to prove the case?
A. As long as these questions aren't putting me into a contract I am happy with that.
Q. Well you are not - it is not a contractual situation as far as I am concerned Mr O'Neill. It is a situation you have been charged with a crime and the police are saying they have got evidence that can prove it and we need to find out whether that is right or not.
Although not directly relevant, I also note that during the course of the hearing the Judge regularly discussed with Mr O’Neill the types of questions he might wish to ask of the Crown witnesses and clarified the position a number of times with Mr O’Neill.
Conviction appeal - analysis
[19] As noted, the charge Mr O’Neill faced was under s 26 of the Covid-19 Public Health Response Act 2020:
26 Offences and infringement offences
(1)A person commits an offence if the person intentionally fails to comply with a COVID-19 order.
(2)A person who commits an offence against subsection (1) is liable on conviction to,—
(a)for an individual,—
(i)imprisonment for a term not exceeding 6 months; or
(ii)a fine not exceeding $5,000:
(b)for any other person, a fine not exceeding $15,000.
(3)A person commits an infringement offence if the person does anything specified as an infringement offence in this Act or a COVID-19 order.
(4)A person who commits an infringement offence is liable to—
(a)an infringement fee of,—
(i)for an individual, $1,000 or any lesser or equal amount prescribed by regulations made under section 33; or
(ii)for any other person, $3,000 or any lesser or equal amount prescribed by the regulations; or
(b)a fine imposed by a court not exceeding,—
(i)for an individual, $3,000 or any lesser or equal amount prescribed by the regulations; or
(ii)for any other person, $9,000 or any lesser or equal amount prescribed by the regulations.
[20] After hearing the evidence and viewing the photographs and other documents produced to the Court as exhibits Judge Crowley was satisfied that at the relevant time, 16 October 2021, Claudelands Park, Hamilton and parts of the Waikato region were in Alert Level 3. At the time gatherings of up to 10 people were only allowed for weddings and civil union ceremonies, funerals and tangihana. The gathering as occurred at Claudelands Park on that day was in breach of the order. Clause 31.1 of the Order confirmed that “A person must not attend a gathering in any outdoor place in the alert level 3 area”. While there were exceptions, none of the exceptions applied to Mr O’Neill. By attending the gathering, Mr O’Neill was in breach of the Order. There was no need, as Mr O’Neill suggested there was, for there to be evidence from witnesses other than the Police of Mr O’Neill’s presence.
[21] Mr O’Neill repeated the point he made when initially speaking to the Police that he did not know it was Alert Level 3, as he did not have a television. But apart from the fact ignorance of the law is no excuse, Mr O’Neill acknowledged he had access to the internet and obtained information about the gathering from the internet. He could readily have made himself aware of the relevant alert levels and border restrictions. Further, the Judge was entitled to draw an inference from all the surrounding circumstances that Mr O’Neill deliberately attended to join the protest in opposition to the Government’s approach to managing Covid-19, including alert
levels. When the organiser, Mr Ferris, was speaking to the attendees the intent of the meeting must have been immediately apparent to Mr O’Neill. Mr Ferris acknowledged the gathering was being held in breach of Alert Level 3. There was no evidence that Mr O’Neill sought to leave until the meeting was over. Finally on this point, in any event, as noted, Mr O’Neill elected not to give evidence to support his defence.
[22]No miscarriage arises from the way the trial was conducted or the conviction.
Sentence appeal
[23]Mr O’Neill also challenged the sentence of 40 hours community work.
[24] The issue is whether in the circumstances a sentence of 40 hours community work could be said to be manifestly excessive. The 40 hours is the minimum that can be imposed, if a sentence of community work is otherwise appropriate. The real issue is whether a lesser sentence, such as a fine was the appropriate sentence, having regard to the hierarchy of sentencing levels.
[25] The particularly relevant factors in my judgment are that there is no evidence Mr O’Neill was involved in any way in organising the illegal gathering. He was just one of a number (up to 1,000) attendees. The evidence was that the protestors were generally well behaved and dispersed after the protest. Mr O’Neill himself was wearing a face covering. Mr O’Neill only seems to have been charged because the Police spoke to him after and obtained his details. Apart from the organiser and Mr O’Neill, few, if any, appear to have been charged. Finally, I note Mr O’Neill has not been in trouble with the Police for a number of years.
[26] In the circumstances I accept that it could be said a fine would have been sufficient so that the sentence of community work was manifestly excessive.
Result
[27] The appeal against conviction is dismissed. The appeal against sentence is allowed. The sentence of 40 hours community work is quashed and replaced with a sentence of a $100 fine.
Venning J
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