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Police v Burrows

Police v Burrows

Case [2020] NZHC 1755 21 July 2020

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-9

[2020] NZHC 1755

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

WAYNE JOHN BURROWS

Respondent

Hearing: 10 June 2020

Counsel:

A R T Garrick and N Azam for Appellant Mr Burrows in person

Judgment:

21 July 2020

JUDGMENT OF ELLIS J

[1] Here I record the reasons for my 11 June 2020 results judgment.1 In that judgment, I dismissed an appeal by Police from a decision of Judge Mill in the District Court at the end of last year.2

[2] In that decision, the Judge stayed two charges under s 8(1)(b) of the Harassment Act which had been laid against Mr Burrows on 13 March 2017. They were stayed, essentially, on the grounds that processes under the Criminal Procedure (Mentally Impaired Persons) Act 1993 (the CPMIP Act) had been triggered without jurisdiction. This was because the court had previously ordered a s 38 report when Mr Burrows was not, in Judge Mill’s view, “in custody” as the section requires. The judge said that these processes had resulted in a breach of Mr Burrows’ New Zealand Bill of Rights Act 1990 (NZBORA) right to be tried without undue delay, and that

1 Police v Burrows [2020] NZHC 1307.
2 Police v Burrows [2019] NZDC 25097.

NEW ZEALAND POLICE v BURROWS [2020] NZHC 1755 [21 July 2020]

permitting the proceedings to continue would undermine public confidence in the integrity of the judicial system.3

[3] On 7 May 2020, Churchman J granted Police leave to appeal that decision on two questions of law, namely:4

(a)whether Judge Mill was correct to find that Mr Burrows was not “in custody” at the time the report under s 38(1) of the CPMIP Act was ordered; and

(b)if so, whether a stay was the appropriate remedy.

[4] Because of the nature of the issues raised, it is necessary, before turning to Judge Mill’s decision, to set out certain matters of the background in further detail: the alleged harassment, the CPMIP Act processes, and the history of the proceedings against Mr Burrows.

The alleged harassment

[5] The two harassment charges were laid very shortly after a restraining order had been obtained against Mr Burrows by a woman who has been referred to in other judgments as “A”.5 Mr Burrows and A previously had a platonic friendship that Mr Burrows maintained was ended abruptly and without reason. It is clear that the friendship meant a lot to Mr Burrows.

[6] The alleged harassment began when Mr Burrows started sending A unsolicited letters, postcards, and e-mails. On 11 December 2016, Mr Burrows was served with a notice under the Harassment Act requiring him to stop communicating with A.

[7] It was alleged that, on 14 February 2017, Mr Burrows sent a further 18 pages of insulting e-mails to A. It is also alleged that on 17 February 2017, when Mr Burrows

3 The Judge did not expressly find that Mr Burrows’ right…

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 Police v Burrows

Details

AGLC: Police v Burrows [2020] NZHC 1755
Case: [2020] NZHC 1755
Decision Date: 21 July 2020

CaseChat Overview and Summary

In this case, the Police appealed against a decision by the District Court to stay the prosecution of Wayne John Burrows for harassment. The appeal was heard by Ellis J in the High Court. The appeal was dismissed. The appeal hinged on two questions of law: whether the District Court Judge was correct to find that Mr Burrows was not "in custody" at the time the report under s 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 1993 (the CPMIP Act) was ordered; and if so, whether a stay was the appropriate remedy. In relation to the first question, the High Court found that the phrase "in custody" meant what it said and that being "on bail" is the opposite of being "in custody", at least until a defendant is required to answer it by appearing in Court. In relation to the second question, the Court found that the delay was undue because the CPMIP Act process had been triggered without jurisdiction. The Court found that the delay was undue because it was unjustifiable and disproportionate in the context of the facts of the case, including the relatively less serious nature of the alleged offending and the absence of any prejudice to the accused’s fair trial rights. The Court also found that a stay was the appropriate remedy given the incomplete CPMIP Act process, the absence of a trial date, and the impact of the COVID-19 lockdown.

Orders