O'Neill v Police - [2023] NZHC 942

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…

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.

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Details

Case: [2023] NZHC 942
Decision Date: 27 April 2023

CaseChat Overview and Summary

Zane O'Neill, the appellant, appealed against his conviction and sentence following a trial in the District Court at Hamilton. He was found guilty 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, specifically, an Alert Level 3 area at Claudelands Park, Hamilton. He was sentenced to 40 hours of community work. The appeal against his conviction and sentence was heard by Venning J on 24 April 2023. O'Neill was unrepresented, and P Noorland appeared for the respondent, New Zealand Police.

The court had to determine whether O'Neill's appeal against his conviction and sentence should be allowed. The appeal against conviction was out of time, but the court extended the time for the appeal to be filed as O'Neill was unrepresented. The court also had to consider whether there was a miscarriage of justice that would warrant the appeal against conviction being allowed. The appeal against sentence concerned whether the sentence of 40 hours community work was manifestly excessive.

In determining the appeal against conviction, the court considered the evidence presented by the Police, including the photographic evidence and exhibits, which established that O'Neill attended a protest in an Alert Level 3 area, in breach of the Order. The court found no miscarriage of justice in the trial, and the appeal against conviction was dismissed. The court then considered the appeal against sentence and found that a sentence of 40 hours community work was manifestly excessive. The sentence was quashed, and replaced with a sentence of a $100 fine.

In conclusion, the appeal against conviction was dismissed, and the appeal against sentence was allowed. The sentence of 40 hours community work was replaced with a sentence of a $100 fine.

Orders