Pointon v Police - [2013] NZHC 2352

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 Respondent

Judgment:

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…

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.

Continue reading Pointon v Police

Details

AGLC: Pointon v Police [2013] NZHC 2352
Case: [2013] NZHC 2352
Decision Date: 10 September 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Pointon appealed against his convictions for two charges of offensive behaviour, which arose from incidents where he was seen gardening and mowing lawns naked at his residential property. Mr Pointon, a naturist, had been previously warned by the police not to continue his behaviour and was aware of his right to legal representation and the possibility of legal aid. Despite this, he conducted his own defence at the District Court hearing. The key legal issues were whether Mr Pointon received a fair trial and whether his behaviour was indeed offensive.

The court found that Mr Pointon's right to a fair trial was not breached. He had been aware of his right to legal representation and had the opportunity to exercise those rights, but he chose to terminate his legal aid counsel and proceed without representation. The judge had clearly explained the court procedures to him, and the issues were simple, allowing him to conduct his own defence competently. The court also determined that Mr Pointon's behaviour was offensive, as it caused unease and inhibited the use of public spaces by his neighbours, particularly when children were present.

Given the fair trial and the offensive nature of the behaviour, the appeal was dismissed, and the convictions were upheld.

Orders