Pointon v Police
[2013] NZHC 2352
•10 September 2013
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI 2013-470-17 [2013] NZHC 2352
BETWEEN ANDREW LYLE POINTON Appellant AND
NEW ZEALAND POLICE Respondent
Hearing: 5 September 2013 Counsel:
M Bott for Appellant
N G Belton for RespondentJudgment:
10 September 2013
JUDGMENT OF HEATH J
This judgment was delivered by me on 10 September 2013 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Tauranga
Counsel:M Bott, Heretaunga Law, Upper Hutt
POINTON v NEW ZEALAND POLICE [2013] NZHC 2352 [10 September 2013]
The appeal
[1] As a result of events that occurred on 5 January 2012 and 30 March 2012, Mr Pointon was charged with two offences involving alleged offensive behaviour. On those occasions, Mr Pointon had been seen gardening, or mowing lawns, naked, at his (then) residential property at 14th Avenue, Tauranga.1
[2] Mr Pointon entered pleas of not guilty to the charges. On 31 May 2013, a defended hearing took place in the District Court at Tauranga, before Judge Harding. Although he had previously instructed counsel and preferred to be legally represented, Mr Pointon conducted his own defence.
[3] Judge Harding satisfied himself that Mr Pointon was prepared to, and could represent himself adequately. After hearing evidence, the Judge found Mr Pointon guilty on both charges.2 He was fined $300 and $350 for the offences that occurred on 5 January 2012 and 30 March 2012, respectively.
[4] Mr Pointon appeals against his convictions. Mr Bott, on his behalf, submits that Mr Pointon was denied a fair trial by reason of the District Court Judge’s decision to proceed with the hearing. In my view, Mr Pointon received a fair trial and the appeal must be dismissed.3
Fair trial – legal principles
[5] Sections 24 and 25 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) set out the rights of those who have been charged with offences and minimum standards of criminal procedure that must be followed. For present purposes, the rights “to consult and instruct a lawyer”, “to adequate time and facilities to prepare a defence”, “to receive legal assistance without cost if the interests of justice so require”, “to a fair and public hearing by an independent and
impartial court” and “to examine the witnesses for the prosecution and to obtain the
1 A more detailed description of the alleged behaviour is set out at paras [12]–[22] below.
2 New Zealand Police v Pointon DC Tauranga CRI-2012-070-000156, 31 May 2012.
3 In particular, see paras [46] and [47] below. Reasons for upholding the Judge’s decision that the behaviour was offensive are set out at paras [49]–[53] below.
attendance and examination of witnesses for the defence under the same conditions
as the prosecution” are said to be engaged.
[6] Relevantly, ss 24 and 25 of the Bill of Rights provide:
24 Rights of persons charged
Everyone who is charged with an offence—
...
(c) Shall have the right to consult and instruct a lawyer; and
(d) Shall have the right to adequate time and facilities to prepare a defence; and
...
(f) Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; and
....
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court:
...
(e) The right to be present at the trial and to present a defence:
(f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:
....
[7] In R v Condon,4 the Supreme Court considered the inter-relationship of those rights and the circumstances in which the right to a fair trial might be breached when a defendant conducts a hearing without counsel. Condon was a case in which the accused had been convicted of threatening to kill and attempting to pervert the
course of justice, following a jury trial in the District Court. Section 30 of the
4 R v Condon [2007] 1 NZLR 300 (SC).
Sentencing Act 2002, was engaged. Section 30(1) prevents a Court from imposing a sentence of imprisonment on a person who was not legally represented at the stage of the proceeding at which he or she was at risk of conviction.5 Section 30(2) disapplies s 30(1) if the offender were informed of his or her rights relating to legal representation, including (where appropriate) the right to apply for legal aid, fully understood those rights, had the opportunity to exercise those rights and refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.
[8] A conviction for “offensive behaviour” does not put a defendant at risk of imprisonment. While s 30 has no application in this case, s 30(2) remains helpful in identifying circumstances in which a person who is not legally represented at a summary defended hearing in a District Court can, nevertheless, be regarded as having had a “fair trial”.
[9] Delivering the judgment of the Supreme Court in Condon, Blanchard J explained the approach to be taken in determining whether an unrepresented defendant had received a “fair trial”. In summary:
(a) Section 24 of the Bill of Rights does not guarantee the provision of a lawyer for the defence in all cases. While a defendant has the right to employ a lawyer, the State does not guarantee to provide a lawyer’s services. The State’s obligation is not to impede the exercise of a defendant’s right to representation. Even if a defendant lacks sufficient means to provide for legal assistance, it is he or she who has the obligation to take necessary steps to obtain assistance under
applicable legal aid legislation.6
(b)In contrast, the right to a fair trial is absolute. An assessment of the fairness of a trial must be made in relation to the trial process as a whole.7 A conviction is not to be set aside merely because “there has
been irregularity in one, or even more than one, facet of the trial”.
5 Sentencing Act 2002, s 30(1).
6 R v Condon [2007] 1 NZLR 300 (SC) at para [76].
7 Ibid, para [77].
Rather, the “departure from good practice must be so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate Court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe”.8
(c) The question is whether a defendant’s “lack of the proper opportunity to have legal representation made or contributed to making the trial, looked at as a whole, unfair”.9 Generally, if a defendant “makes an informed choice to go to trial without a lawyer, or is rightly refused legal aid, or by conduct creates a situation in which, on a proper balancing of various interests, further delay in the holding of the trial is not to be tolerated” there will be no breach of s 24 rights. That said, it remains necessary for an appellate Court to consider the “overall fairness of the trial” because that right cannot be compromised.10
[10] The Supreme Court discussed the approach to be taken on appeal to determining whether there was or was not an unfair trial. Blanchard J said:11
[81] At the outset of its consideration of fairness the appeal Court must make a determination concerning the circumstances in which the accused came to be tried without a lawyer. That is because if the appellant has been denied a reasonable opportunity of legal representation, the onus will be on the Crown to satisfy the Court that in all the circumstances the absence of representation did not result in an unfair trial. Bearing that in mind, the Court must carefully consider what occurred at the trial and during the earlier period when the accused was preparing to conduct the defence.
[82] The Court should examine the manner in which the Judge presided over the trial, especially whether the Judge clearly explained the Court procedures to the accused and thereby minimised the disadvantage of being unfamiliar with the trial process and with rules of evidence. It will be relevant also whether the accused had the benefit of guidance from a lawyer or an amicus at any time prior to or during the trial. The Court must have regard to the personal characteristics of the appellant, such as level of intelligence and education, previous experience in a courtroom and ability to express him or herself clearly and sensibly in that setting. It must look to see whether the case involved any difficult legal issues or had other complexities which might have benefited from analysis by a trained legal mind. It should also look at the nature of the Crown case and at how effectively the accused
8 Ibid, at para [78], citing, with approval, observations made by Lord Bingham in Randall v R
[2002] 1 WLR 2237 (PC) at para [28]. See also, R v Howse [2006] 1 NZLR 433 (PC).
9 Ibid, at para [79].
10 Ibid, at para [80].
11 Ibid, at paras [81] and [82], citing McInnis v R (1979) 143 CLR 575 (HCA).
in fact managed to convey the nature of the defence in cross-examination of Crown witnesses, examining defence witnesses, giving evidence (if the accused chose to do so) and addressing submissions to the Court. Mason J pointed out in McInnis that the calibre of the accused’s forensic performance is a relevant, but not a critical, factor in the determination of fairness. The appeal Court should not be too ready to conclude from a reading of the transcript that the defence has been conducted as competently as counsel, with professional skill and detachment, would likely have done. A transcript does not necessarily convey the full atmosphere of the courtroom and in particular the demeanour of the accused before the jury. A fortiori, if the full transcript, including addresses, is not available.
(emphasis added)
[11] Because Condon involved a trial by jury, the Supreme Court’s observations were directed to that situation. The same principles must apply when the challenge is to a conviction entered after a defended summary hearing in a District Court. On appeal, this Court must determine their application by reference to steps taken by the presiding Judge to ensure a fair hearing.
The facts12
(a) The 5 January 2012 charge
[12] On 5 January 2012, one of Mr Pointon’s neighbours, Mr van der Vlugt was in his kitchen. He and his wife live in a house opposite to the one occupied by Mr Pointon. Mr van der Vlugt described looking out of the window and seeing Mr Pointon gardening in the nude. Mr Pointon was described as weeding and doing garden maintenance work.
[13] As it happens, members of the Police had been called to Mr Pointon’s address earlier that day. Mr Pointon had been warned not to continue with behaviour of that type, as a complaint had been made. Senior Constable Murray informed Mr Pointon of the prospect of further action if a further complaint were to eventuate. The events witnessed by Mr van der Vlugt followed within a relatively short time of that warning having been given.
[14] Mr van der Vlugt gave evidence that Mr Pointon was two or three metres inside his property boundary but, nevertheless, clearly visible from the opposite side
12 This summary is taken from paras [10]–[32] of the District Court judgment.
of the road and from the street. This activity continued for some 15 minutes or so. Mr van der Vlugt then heard another neighbour, Mr Richardson, calling his two young children back from the driveway.
[15] Mr Richardson also lived in close proximity to Mr Pointon. He has two children, twins then aged four years. The male twin called out to his sister to come onto the lawn area to “look at this”. He appears to have been excited about seeing Mr Pointon naked.
[16] Mr van der Vlugt expressed (what the Judge termed) “deep concern about what he described as a man exposing himself in front of small children”. The area in which the events occurred are within a community that contains two schools and two places of worship.
[17] Mr Richardson had previously spoken to Mr Pointon about gardening and mowing his lawns in the nude. He had conveyed an intention to call the Police were it repeated. On this occasion, he called the Police and went outside to get his children back into the house believing what they were seeing was inappropriate.
[18] Mr Pointon was arrested for behaving in an offensive manner. He was released from the Police Station later in the day.
(b) The 30 March 2012 charge
[19] The second charge arose out of a separate incident that occurred on 30 March
2012. On this occasion, Mrs van der Vlugt was walking home from work, at about
1.30pm. As she approached her home, she heard a lawn mower. In the past, she had seen Mr Pointon mowing his lawns naked. She described behaviour of this type having occurred over the previous two and a half years, or thereabouts.
[20] Mrs van der Vlugt described three or four cars passing as she approached and being able to see Mr Pointon on his property, walking naked while pushing the mower. This could be seen from the footpath, as she walked along the road. She saw Mr Richardson also watching the activity. She went to get a camera to obtain
tangible evidence of what had occurred but by the time she returned Mr Pointon had put on a pair of shorts.
[21] There was an altercation between Mr Richardson and Mr Pointon. There was dispute about where that occurred. In the context of the case, nothing turns on the point. Subsequently, the Police were called, a complaint was made and Mr Pointon was arrested.
[22] Mr Pointon gave evidence that on each occasion he was inside his private property and largely protected from view by hedges. He did not believe others could see him.
An earlier “offensive behaviour” charge
[23] Mr Pointon is a committed naturist. This was something about which he gave evidence. He believes that he should be able to express himself13 by going about his daily business naked, without causing offence to others.
[24] On 23 August 2011, before the events presently in issue, Mr Pointon had been jogging along tracks in a wooded area within Oropi Bike Park, about 20kms from Tauranga. Apart from running shoes, he was naked. He encountered a female complainant, walking her dog. She made a complaint to the Police. As a result, Mr Pointon was charged with “offensive behaviour”.
[25] In a judgment given on 6 December 2011 (before the present incidents) a Community Magistrate found Mr Pointon guilty on that charge.14 Subsequently, after the events presently in issue, an appeal against conviction was dismissed.15 On appeal to this Court, Mr Pointon’s conviction was set aside.16
[26] The relevance of these earlier proceedings is that Mr Pointon had been involved in a defended hearing in the District Court before the current offending.17
13 New Zealand Bill of Rights Act 1990, s 14.
14 Police v Pointon DC Tauranga CRN 1107000006717, 6 December 2011 (Best CM).
15 Pointon v Police DC Tauranga CRI-2012-470-5, 11 June 2012 (Judge P A Moran).
16 Pointon v Police [2012] NZHC 3208.
17 See R v Condon [2007] 1 NZLR 300 (SC) at para [82], set out at para [10] above.
As a result, he was aware as at 31 May 2013, of the processes involved in conducting a defended hearing of a summary charge in the District Court.
The “fair trial” point: evidence
[27] Although the events in issue occurred in January and March 2012, for various reasons (the fault for which cannot be sheeted home to Mr Pointon), a defended hearing did not take place until 31 May 2013. At least in part, the delay appears to have been attributable to both the informant and Mr Pointon awaiting this Court’s decision on the “naked jogging” appeal. That decision was given on 30 November
2012.
[28] The hearing date of 31 May 2013, for the present charges, was allocated on
20 March 2013. An earlier date of 26 March 2013 was vacated because of the unavailability of the officer in charge.
[29] By 31 May 2011, Mr Pointon had seen no fewer than four lawyers about defending the charges. They were Mr Nabney, Mr Tuck, Mr Balme (with Ms Andersen) and Mr Owers. Mr Nabney, Mr Tuck and Mr Balme are all senior and experienced criminal lawyers. It is clear from a letter sent to Mr Pointon by legal aid authorities on 13 May 2013 that Mr Balme was the first lawyer to have been retained as legal aid counsel.
[30] Mr Owers was employed as a solicitor by the Public Defence Service in Tauranga. The grant of legal aid previously made in favour of Mr Balme was transferred on 12 April 2013, to enable Mr Owers to act.
[31] Mr Pointon assets that:
(a) In the course of a telephone discussion, after having seen Mr Owers to discuss his case, Mr Owers told him that his case was “unwinnable”. As a result, he lost confidence in Mr Owers.
(b)At some time before 13 May 2013, he sought a transfer of legal aid to another lawyer. That was refused by the legal aid authorities, by letter dated 13 May 2013.
(c) By the time a transfer of legal aid was refused, he had not seen any
“briefs of evidence or statements”.
(d) He was unable to brief alternative counsel before the hearing on 31
May 2013.
(e) He was recovering from surgery on his arm. At the time of the hearing on 31 May 2013, the whole of his right arm was in a plaster cast. He is right handed. That hindered significantly his ability to make notes of the evidence, as it progressed.
(f) He wished to seek an adjournment of the hearing but was interrupted by the Judge before he had an opportunity to do so.18 He was forced to defend the charges on his own behalf despite his lack of understanding of the processes. Also, witnesses whom he wished to call were not present.
Analysis
[32] Because of the nature of Mr Pointon’s complaints, both he and Mr Owers swore affidavits on the appeal.19 Both also gave oral evidence before me and were cross-examined. The differences in their evidence can best be seen from a comparison of their affidavits.
[33] Mr Pointon, in his affidavit, deposed:
18 See para [42] below. It is the second highlighted portion of the exchange that gives rise to Mr Pointon’s complaint that the Judge was not prepared to listen to his intended adjournment application.
19 Mr Pointon waived privilege so that Mr Owers could do so.
2.On 31 May 2013 I was convicted in relation to two charges of offensive behaviour following a defended hearing in the District Court at Tauranga.
3.Earlier that week my legal aid lawyer was granted leave by the Court to withdraw. I had no faith in his ability to argue my case and I wanted the opportunity to be able to seek to instruct a lawyer privately. If need be I could obtains funds with the help of my family to do this.
4. Shortly after he was granted leave to withdraw I obtained the file.
This would have been a matter of days before the hearing. Prior to receiving the file I had not seen any briefs of evidence or statements.
5.I have little experience in Court rules and processes have a limited education and left high school at fifteen years of age without school certificate. I have no university education.
6.On 31 May 2013 when I attended Court I had only just received my case file a short time before and I was also recovering from surgery on my arm. I needed extra time to try and find a lawyer and also to speak to witnesses. On the day of my hearing I was also handicapped by the fact that my right arm was in a complete cast. On 15 May 2012, I had undergone surgery at Tauranga Hospital under a general anaesthetic to reattach a torn muscle in my right arm As I am right handed I found it next to impossible to write and turn pages.
7.In any event I had hoped that on 31 May 2013 I could ask the Court to grant an adjournment for me so I could arrange to instruct a lawyer to represent me and also to be given the opportunity to arrange for witnesses to appear on my behalf and to properly prepare my defence.
...
9.When the case began, the Judge told me that counsel had previously represented me, and asked me if I was prepared “to deal with this on your own?” I said, “yes” thinking he meant, am I prepared to ask for an adjournment on my own?
10.Next thing he began giving me a run down on some rules on how to conduct a case. I had no idea of what he was on about and was frightened at the speed at which things were progressing.
11. I tried to protest and say that I was not ready, I wanted to instruct a lawyer of my choosing and I had not even called my witnesses, and my arm was in a cast and I could not turn pages with ease or write and record notes.
12.The Judge told me that it was not my time to speak and I had to wait my turn, which was after the Police case. This was unfair. I did not want to proceed. I had no idea what I was doing and felt like I was railroaded into defending myself when I was not prepared at that time to do so. Further as I am right handed and that arm was
completely in plaster I could not even turn pages easily or write notes. I was not prepared in any way to proceed with my defence.
13.I gained the impression that the Judge was in a hurry to get this case out of the way.
14.I had some statements from neighbours who were going to come and give evidence that contradicted evidence from the Police witnesses, but as I did not think the case was going to proceed I did not even think of asking them to come along and give evidence for my case.
15.At the end of my case I thought I had better try and get the statements in at least but I was not allowed to do that by the Judge There was no way that I was prepared to proceed with my defence on the day of the hearing.
(Emphasis added)
[34] Mr Owers gave a more nuanced account of his dealings with Mr Pointon, in most cases producing documents to support his recollections. Mr Owers stated:
4.I attended Mr Pointon on 24 April 2013. Before the meeting I had read his file and the relevant case law. The meeting was for over two hours. I took instructions as to the police Briefs of Evidence and discussed the court process. Mr Pointon also told me a little bit about his lifestyle and the work he does promoting “naturism”. I understand that Mr Pointon had been represented by Tony Balme and that the file had been created by Mr Balme’s office. The file contained the police disclosure.
5.On 2 May 2013 Mr Pointon telephoned me at my office. We had a further discussion about his case.
6.At no time did Mr Pointon directly express any concerns about the manner in which I had proposed to conduct the case.
7. On 13 May 2013 I received a letter from legal aid. Annexed hereto
and marked “B” is a copy of the letter.
8.Following receipt of that letter I telephoned Mr Pointon to discuss his ongoing representation. I told him that I was happy to continue to act and could meet him to address any concerns that he had. He did not want to do that and wanted to transfer to another provider outside of the PDS.
9.I also asked Glenn Dixon a senior PDS lawyer and the person who was in charge of the office on that day for advice. As a result he telephoned Mr Pointon. After that I was advised by Mr Dixon that Mr Pointon refused representation from our office and would be picking up his file.
10. My file shows that he collected the file from our office on 22 May
2013.
11. On 22 May 2013 I wrote to Mr Pointon. Annexed hereto and
marked “C” is a copy of the letter.
12.I also filed a memorandum with the court seeking leave to withdraw as counsel. Annexed hereto and marked “D” is a copy of the memorandum.
13.On 27 May 2013 I appeared before His Honour Judge Rea in the Tauranga District Court and was granted leave to withdraw as counsel. Following that appearance I wrote to Mr Pointon. Annexed hereto and marked “E” is a copy of the letter.
14. I have also read the affidavit of Mr Pointon dated 30 August 2013.
At paragraph 4 he states:
Shortly after he was granted leave to withdraw I obtained the file. That would have been a matter of days before the hearing. Prior to receiving the file I had not seen any briefs or evidence or statements.
15.The dates relating to the collection of the file and the granting of leave to withdraw as counsel have been addressed above. Mr Pointon is incorrect when he states that he had not seen the briefs or statements. He had provided Mr Balme’s file to our office directly, prior to our meeting. The file included the briefs and statements. I went through both the briefs and the statements when I met Mr Pointon on 24 April 2013. My impression was that he was very familiar with the contents of the file and that he had a deep personal interest in the case.
16.I note that I discussed with Mr Pointon the issue as to whether there were any people who he could potentially call as witnesses. He mentioned a neighbour who he said could give evidence along the lines that Mr Pointon had approached him and explained his lifestyle and that Mr Pointon had been a trouble free neighbour for some time and was generally discreet about the naturism. I never met the prospective witness.
(Emphasis added)
[35] In evidence before me, Mr Pointon confirmed his position that he had lost confidence in Mr Owers because the latter had told him the case was “unwinnable”. Mr Owers disputed that, saying that it is something that he would not have said and that the point had never been raised with him directly by Mr Pointon. In any event, Mr Owers said that he thought Mr Pointon’s defence was arguable, based on my
decision on his appeal from the “naked jogging” conviction.20 On closer
questioning, Mr Pointon acknowledged that his loss of confidence was not directly
20 Pointon v Police [2012] NZHC 3208.
communicated to Mr Owers before he sought a transfer of legal aid from Mr Owers to another lawyer.
[36] Although there was some evidence to suggest that a conversation had occurred between a senior lawyer at the Public Defence Service (Mr Dixon) and Mr Pointon to the effect that only Mr Owers would be available to undertake the assignment, it is clear that the legal aid authorities considered that another lawyer within that office could take over the brief. In any event, the point is moot because Mr Pointon made it clear before me that he did not want anybody from the Public Defence Service to act for him. That stance also accords with Mr Owers’
recollection of what occurred.21
[37] Where there is conflict between the evidence of Mr Pointon and that of Mr Owers, I prefer Mr Owers’ evidence. He has supported much of his recollection with contemporary documents and he was frank in the way in which he gave evidence. On the other hand, my impression was that, on occasion, Mr Pointon was being deliberately obtuse. An example of that was his refusal to accept that he understood the import of the District Court Judge’s question: “You are prepared to deal with this
on your own?”22
[38] I accept Mr Owers’ evidence that Mr Pointon delivered “a file to him” from Mr Balme’s office. That contained briefs and statements provided by the Police on disclosure. I also accept Mr Owers’ evidence that Mr Pointon appeared familiar with the contents of Mr Balme’s file. That is consistent with the strong views held by Mr Pointon about naturism, his interest in legal issues surrounding that and his involvement in the earlier proceedings that concluded with an appeal to this Court.
[39] I find that Mr Pointon received his “file”, from the Public Defence Service, on 22 May 2013 and that as a result, Mr Owers sought leave to withdraw as counsel. The briefs of evidence and the statements were on that file. On his own evidence, Mr Pointon took no steps in that period to review those statements and the other
material, or to obtain the services of another lawyer to conduct the hearing.
21 See para 9 of Mr Owers’ affidavit, set out at para [34] above.
22 See para [42] below.
[40] Having received a file of papers from the Public Defence Service on 22 May
2013 (in anticipation of a defended hearing on 31 May 2013), Mr Pointon took a number of documents to the District Court. Included among them were photographs of his property which he put into evidence.
[41] Despite Mr Pointon’s denials on oath that he did not understand the Court process and was unable to participate in it and present his case competently, I am satisfied both that he did know what was involved in a defended hearing (from his previous experience)23 and acknowledged to the Judge that he was prepared to defend himself.
[42] When the case was called before Judge Harding on 31 May 2013, the following exchange occurred:
THE COURT:
Mr Pointon, you have previously, I understand, had counsel, counsel sought leave to withdraw I understand earlier this week. You are prepared to deal with this on your own?
MR POINTON:
Yes.
THE COURT:
You will be aware that it is for the police to prove the charges beyond reasonable doubt and they will call evidence. You will have the opportunity to cross-examine any of the witnesses. If in doing so, you propose to give or call evidence you need to (inaudible 10:14:08) so that they have the opportunity (inaudible 10:14:18). At the end of the police case you have the opportunity to call evidence (inaudible 10:14:28) obligation, do you understand all of that?
MR POINTON:
Yes. (inaudible 10:14:38) THE COURT:
No Mr Pointon, it is not your time to speak yet, it is time for the police to present their evidence first and then it is the opportunity for the defence to be heard. That’s the way the trial works, the police (inaudible 10:14:56)
... (Emphasis added)
23 See paras [23]–[26] above.
[43] Following that exchange, there was a discussion between Judge Harding and the prosecuting sergeant about some procedural issues. Mr Pointon was drawn into that discussion. The first issue concerned the question whether the two charges should be heard separately or together. That exchange proceeded in this way:
THE COURT:
Well I take it sergeant previously been consideration to two separate matters being heard together?
SERGEANT GRAHAM:
I believe, Sir, that the matters simply (inaudible 10:15:19) today, Sir, and I have no advice on what previous arrangements the Court had made, Sir, but I’m in your hands if you [choose] to hear these two matters separately, Sir, but if I can – I am prepared to call the witnesses in the necessary order to deal with them then.
THE COURT:
You wish to be heard on that issue, Mr Pointon? I see that this has been arranged presumably with the consent of your counsel up until earlier this week for two separate matters to be heard today. That’s your understanding?
MR POINTON:
Correct.
THE COURT:
You content with that?
MR POINTON: That that’s okay. THE COURT:
Yes very well. I think they need to be called separately, sergeant, and there is on that basis the justification for your second officer in charge to be present during the giving of the evidence on first matter. I deal with sequentially but I will give a decision after all of the evidence on the other matters as well.
SERGEANT GRAHAM:
The matter relates to two charges or these matters this morning relate to two charges. In respect of CRN ending 1877, Sir. I seek leave to amend the date recorded on to the information to that of the 30th of March 2012.
THE COURT:
You have any comment on that, Mr Pointon?
MR POINTON:
No.
THE COURT:
Very well, without objection the date is amended to the 30th of March 2012. With that amended charge how do you plead, Mr Pointon?
MR POINTON:
Not guilty.
THE COURT:
Thank you. Sergeant. (emphasis added)
[44] In the context of being asked about whether there were witnesses to be called by the Police whose evidence could be taken as read, Mr Pointon was also asked about whether he had seen copies of the witness statements. That exchange proceeded in this way:
THE COURT:
I understand from what the sergeant said is that one or more of your earlier counsel had agreed with the police that a number of witnesses could have their evidence read, that the sergeant understands you have withdrawn that consent. Is that the position?
MR POINTON:
I’m not sure what you mean by that but, um…
THE COURT:
I’m not sure that it's too complicated, Mr Pointon. When the police seek to call witnesses there are frequently arrangements made which, by which the defendant through counsel or in person says, “I accept what that witness says. There’s no need to call them and their evidence may be read.” The sergeant tells me that such arrangements were made in connection with these matters in the past but you have resiled from those. I’m just checking whether that’s the case.
MR POINTON:
No it wasn’t discussed with me at all through counsel.
THE COURT:
It will have been discussed with your lawyers, I’m sure.
MR POINTON: Mmm.
THE COURT:
So are you saying that you have no idea what the witnesses are? MR POINTON:
I have a list of witnesses that were to be called.
THE COURT:
Yes. And do you know what they’re all going to say?
MR POINTON:
No.
THE COURT:
Well it's somewhat difficult to understand, Mr Pointon, because of the disclosure process and that would ordinarily have meant that your lawyer had copies of the statements of witnesses which would have been available to you. Are you saying that that’s not the case here?
MR POINTON:
Yes, oh, no I haven’t seen them in the folder, no.
THE COURT:
It's not a question of whether it's in a folder. Have you not seen the statements of the witnesses that the police intend to call? Is that what you’re saying to me?
MR POINTON:
Yes.
THE COURT:
I will take a break for a few minutes, sergeant, while Mr Pointon has a look at the statements. It may mean that the witnesses in some cases don’t need to be called if there can be agreement reached. But I will resume at 10.30. So the sergeant will give you copies of these briefs, Mr Pointon.
MR POINTON:
Yes that would be good. THE COURT:
If there’s anything in those that are not in issue as far as you're concerned, the process can be sped up and simplified by reading those, providing you don’t feel you're in any way prejudiced.
MR POINTON: Yes.
THE COURT:
As I said it's a perfectly routine process usually undertaken. We’ll take a break for 10 minutes, we’ll resume at 10.30
COURT ADJOURNS: 10.21 AM (emphasis added)
[45] With regard to Mr Pointon’s preparedness to conduct his own defence and the reading of evidence of certain prosecution witnesses, Judge Harding recorded, in his judgment, that:24
[2] [Mr Pointon] represents himself. He was advised by counsel until recently but this morning indicated that he did not have counsel and was prepared to proceed on his own.
[3] There has been agreement that certain evidence relating to these two charges which are heard together with Mr Pointon’s consent, be read, that including the evidence of Senior Constable Marks, Constable Robertson and Constable Keno, and the photographs which have been prepared by the police. A series of photographs taken by Mr Pointon were accepted in evidence as defence exhibit A by consent.
p
a
24 Police v Pointon DC Tauranga CRI-2012-070-000156, 31 May 2012, at paras [2] and [3].
[46]
satisfi
Ap ed th
(a)
lying the factors to which the Supreme Court referred in Condon,25 I am t Mr Pointon did receive a fair hearing. In particular:
Mr Pointon was aware of his right to legal representation, including
his ability to seek legal aid to retain counsel. He had the opportunity to exercise those rights, and did so.26 (b)
Leaving to one side private retainers arranged with Mr Nabney and
Mr Tuck,27 Mr Pointon sought and obtained legal aid so that he could
be represented at the defended hearing. He did so in the knowledge 25 See para [7] above.
26 Compare with the factors in s 30(2) of the Sentencing Act 2002, set out at para [7] above.
27 See para [29] above.
that defence of the charges was important to him, given his naturist views. Initially, Mr Balme was to be his counsel. The grant of aid was transferred to Mr Owers, to whom Mr Pointon brought Mr Balme’s file. That included witness statements that I am satisfied Mr Pointon had read.
(c) Having received a transfer of the grant of aid to Mr Owers just over one month before the 31 May 2013 hearing date, Mr Pointon terminated Mr Owers’ instructions. He made no further attempts to engage another lawyer once a further transfer of legal aid was declined.
(d)Having received notification from legal aid authorities that a further transfer of the grant would not be permitted,28 Mr Pointon uplifted his file from the Public Defence Service on 22 May 2013. On his evidence, he took no steps to read statements and briefs of evidence on the file but “hoped” to ask the Court to grant an adjournment.29
(e) In relation to the operation on Mr Pointon’s arm, that occurred on 15
May 2012, about a week before Mr Pointon uplifted his file from Mr
Owers, with knowledge of the defended hearing date.
(f) Judge Harding asked Mr Pointon, in unequivocal terms, whether he was prepared to deal with the defended hearing on his own behalf. Mr Pointon responded in the affirmative.30 The Judge then gave an explanation of the process to be followed which, despite gaps in the transcript, I am satisfied was sufficient to enable Mr Pointon to conduct the hearing, particularly given his experience at a defended hearing before a Community Magistrate in late 2011. The fact that Mr Pointon understood the process is confirmed by later discussions
between the Judge and Mr Pointon, particularly those relating to the
28 Under the present legal aid system, there is no right to counsel of choice: see Clark v Registrar of the Manukau District Court [2012] NZCA 193, at para [48].
29 See para 7 of Mr Pointon’s affidavit, set out at para [33] above.
30 See para [42] above.
need to hear the two charges together, Mr Pointon’s plea of not guilty to an amended charge,31 and the Judge’s observations, in his judgment.32
(g)While Mr Pointon may be said to have conducted his defence considerably below the level of forensic skill that one would expect from a qualified lawyer, the issues were simple. There was no real dispute that Mr Pointon had been gardening and mowing his lawn naked. The real issues seemed to turn on whether (a) he could actually be seen by members of the public from across the road or the footpath and (b) in any event, his conduct amounted to “offensive behaviour”. Mr Pointon was well aware of the decision I gave last year, allowing his appeal against conviction on the offensive
behaviour charge arising out of the “naked jogging” incident.33
(h)Although Mr Pointon continues to assert that there were witnesses whom he could call in support of his defence, nothing was put before me to suggest that any particular person could have given evidence that would have assisted his defence. No potential witness was named. No draft witness statement was produced.
(i)The fact that Mr Pointon was handicapped in making notes, due to his arm injury, would have been clear to the Judge hearing the charges. Plainly, Judge Harding did not consider that it was such an impediment to conducting a defence as to require an adjournment.
(j)Although Judge Harding did take account, in rejecting Mr Pointon’s evidence that he was inside private property and largely protected from view by hedges, what he termed “unchallenged” evidence to the
contrary from Mr Richardson and Mr and Mrs van der Vlugt.34 That
31 See the exchange set out at para [38] above.
32 Police v Pointon DC Tauranga CRI-2012-070-000156, 31 May 2012 at paras [2] and [3], set out at para [45] above.
33 See para [25] above.
34 New Zealand Police v Pointon DC Tauranga CRI-2012-070-0-00156, 31 May 2012 at paras
[26], [28] and [29].
view was influenced by Mr Pointon’s failure to put his proposed evidence to those witnesses. Having said that, it was inherently implausible for Mr Pointon to suggest that the people who had made a complaint were unable to see him either gardening or mowing his lawn, on either or both of the relevant occasions.
(k)Judge Harding is a very experienced District Court Judge. He is unlikely to have allowed Mr Pointon to continue if he believed that he was incapacitated to a degree that would affect conduct of the case, or if he was plainly unable to present it. I reiterate that the issues were simple, did not turn on consideration of documentary evidence and were capable of being dealt with through questioning witnesses and by Mr Pointon giving evidence.
(l) The changes were ones for which a maximum penalty of a fine of
$1000 was available. Mr Pointon was not at risk, on conviction, of being imprisoned.
[47] Being as benevolent as I can, I regard Mr Pointon’s present evidence about his lack of understanding of the process and what he was told by the Judge as being an honest but inaccurate reconstruction of what occurred. It is likely that Mr Pointon has convinced himself that he did not and could not understand what the Judge said to him about Court processes and the way in which to conduct the hearing. His present regret at running the hearing himself is more a result of his dissatisfaction with its outcome than a genuinely held view that the process was unfair.
[48] I am satisfied that Mr Pointon received a fair hearing. On that basis, his appeal must be dismissed.
The “offensive behaviour” point
[49] Mr Bott accepted that if I were to find that the trial was fair, he could not challenge the Judge’s decision that the behaviour was offensive. That was a responsible concession. In my view, there was no answer to the charges brought. The circumstances were very different from those involving naked jogging, on the
basis of which I allowed Mr Pointon’s appeal against conviction for the same offence
last year.
[50] Given the need to distinguish the two cases, I make some brief observations on this point.
[51] The circumstances in which offensive behaviour will be proved were discussed by the Supreme Court, in Morse v Police.35 They are summarised fully in my judgment on the naked jogging charge.36 In discussing Morse, I said:
[32] ... I endeavour to synthesise the views expressed in the Supreme
Court, by reference to the facts of this case:
(a) The complainant’s reaction is no more than evidence of how a particular person did react in the situation under consideration. The test is whether someone in her position, being respectful of Mr Pointon’s right to express himself by running naked through the woods in the circumstances prevailing at the time, would have been offended by the conduct.
(b) For behaviour of the type exhibited by Mr Pointon to amount to a criminal offence, it must interfere with use of a public space by causing such unease as to inhibit recourse (or return) to the place. The relevant level of behaviour is fixed by reference to whether it is of such a character as to attract the interest of the criminal law and render a person liable to a conviction and a fine not exceeding
$1000.
(c) The level of the conduct producing the inhibition is determined by comparing what the (hypothetical) reasonable member of the public of the kind who was actually affected by the conduct would tolerate as an exercise of Mr Pointon’s freedom of expression (on the one hand) with the complainant’s entitlement to enjoy tranquillity and security when using a public amenity (on the other).
(footnotes omitted)
[52] Judge Harding adopted my analysis of the legal principles but also referred to my comments about a hypothetical factual situation, not dissimilar to the present. Despite the similarity, I was unaware at the time I gave judgment that charges of the
same type against Mr Pointon were pending. I said:37
35 Morse v Police [2012] 2 NZLR 1 (SC).
36 Pointon v Police [2012] NZHC 3208 at paras [15]–[31].
37 Ibid, at paras [23] and [24].
[23] The concept of public order (or disorder) is difficult to apply in the context of behaviour involving a naked man running through the woods. If the person is running in a relatively remote location, it might confidently be said that there is little prospect of disruption to public order. In contrast, if a naked man were to do his gardening in full view of a neighbour’s house at which a young girl lived, that conduct could conceivably provoke a confrontation between the naked man and the girl’s father; potentially leading to a physical conflict. That juxtaposition of conduct involving public nudity emphasises the contextual nature of any analysis of this type.
[24] However, a potential for physical violence is not the relevant touchstone. As I read the judgments given in Morse, the Supreme Court took the view, unanimously, that behaviour that inhibits others from using or returning to a public place will be offensive, if of a sufficient level to justify intervention of the criminal law. That being so, it was unnecessary for the prosecution to establish a likelihood of violence to support a case of a threat of disturbance of public order.
[53] I endorse Judge Harding’s application of the law to the facts, as he found them. He said:38
[46] I find as a matter of fact that Mr Pointon’s behaviour on each occasion was such as to cause his neighbours, over the road, to restrict the use of their front yard in relation to the van der Vlugts and to remove children and to avoid them being exposed to such behaviour as far as Mr Richardson was concerned.
[47] This is not a situation distanced from people but rather a situation where Mr Pointon knowing that what he did would cause offence to some of his neighbours continued and did so in any event.
[48] I am entirely satisfied that what he did while although being within what might be described as the property boundary, was able to be seen by passers-by including the complainants.
[49] I find myself completely unable to accept Mr Pointon’s suggestion that his nakedness was not able to be seen and indeed the sergeant suggested that his behaviour was in the nature of “exhibitionism”, a word which is not entirely inapt, but that does not determine whether it ought to draw the sanction of the criminal law.
[50] In distinction to the facts considered by Heath J, [in the naked jogging decision], this behaviour was at the time of day when it would be likely, if not certain, that children would be around. The 5th of January was within the school holidays, Mr Pointon was aware that there were children in the area although maintaining a studied indifference to how many or where or the nature of public passage and repassage outside the property.
38 New Zealand Police v Pointon DC Tauranga CRI-2012-070-00156, 31 May 2012 at paras [46]–
[52].
[51] I do not disregard what has been before me as to evidence of ongoing difficulties between Mr Pointon and the complainants in considering matters.
[52] In the circumstances and in the context of the location that I am considering I consider that reasonable persons having the characteristics of the particular complainants have been offended and to such a degree as to warrant the invocation of the criminal law.
[54] While Mr Bott raised some concerns about the fact that Mr Pointon was handcuffed when arrested on one occasion and was stood down in the cells while bail was considered on another, neither of those factors have any bearing on the question of a fair trial, or whether the behaviour was offensive. Nor, in the context of the level of fines imposed by the Judge, could they have affected sentence in any meaningful way. It seems to me that concerns of this type are ones that should properly be raised, by way of complaint, with the appropriate authorities.
Result
[55] Mr Pointon’s appeal against the two convictions is dismissed.
P R Heath J
Delivered at 4.00pm on 10 September 2013
3
1