T v Police HC Christchurch CRI 2008-418-4

[2008] NZHC 1170

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-418-000004

T

Appellant

v

POLICE

Respondent

Hearing:         23 July 2008

Appearances: Appellant in Person

M N Zarifeh for Respondent

Judgment:      23 July 2008

JUDGMENT OF FOGARTY J

[1]      This is an application for leave to appeal to the Court of Appeal against a decision of the High Court delivered on 12 June 2008.

[2]      The application for leave to appeal starts with a citation of Article 9 of the The Bill of Rights 1688 (law in New  Zealand by reason of the  Imperial  Laws Application Act 1988 s 3(1) First Schedule) developed in four propositions:

1.        Evidence presented at trial by police is being challenged.

T V POLICE  HC CHCH CRI 2008-418-000004  23 July 2008

2.Hon Justice William Young’s ruling in 2001 in the High Court Christchurch is wrong in law.  The faxes sent to Parliament, admitted by Mr Robert T  , could be used to identify him.

3.District Court Judge Walsh’s ruling in the Greymouth District Court trial in 2005.

Threatening to kill the then Justice Minister Hon Phil Goff is correct. The Crown had to abandon the trial.  Robert T   Senior Counsel to the Supreme Court S.C.1 claimed Parliamentary privilege on letter used by the trial Judge.

4.        The Crown cannot rewrite the Bill of Rights 1688 in New Zealand.

[3]      In respect of the first ground Mr T   amplified it by saying that the police had not adequately proved that he had made a telephone call.   He criticised the evidence of Mr Coburn as being inadequate.

[4]      Dealing first with that and putting aside for one moment whether Mr Coburn could have been called in any event, I am satisfied that Mr Coburn’s evidence was sufficient to enable the trial Judge to be satisfied that the caller was Mr T   and, more significantly, that was a decision for the trial Judge.  There is no question of law on the point that can be taken to the Court of Appeal and it is not a point of public importance.

[5]      The second aspect of Mr Coburn’s evidence which is challenged by Mr T   is captured in the second, third and fourth points set out above and this is that Mr T   was exercising his rights in Article 9 of the Bill of Rights Act of freedom of speech when making a telephone call to Parliament and the evidence of the person receiving that call should not be admitted in the ordinary courts at all, let alone in criminal proceedings, because to do so is a restriction on the freedom created in Article 9 of the Bill of Rights Act 1688.

[6]      In my view this is essentially the very same point taken earlier by Mr T   in

2004 (T   v Police HC GRY CRI 2003-418-000008 [5 May 2004]) when he appealed  against another conviction under the  Telecommunications  Act  2001  in

which case the police had relied upon a fax sent to Parliament and argued that it was a fax from Mr T   which was accepted by the trial Judge.

[7]      William Young J on appeal rejected the Article 9 point.  The case then came before me as an application for leave to the Court of Appeal.   I heard it because William Young J was no longer sitting in the High Court but had gone to the Court of Appeal.  In that judgment by myself on 5 May 2004 I essentially said that William Young J’s decision was correct, was setting out settled law, and that there was no issue of law of public importance to go to the Court of Appeal, the point being that Article 9 cannot be used to prevent the prosecution of criminal cases arising out of criminal conduct within the precincts of Parliament.

[8]      I am satisfied that Mr T   has brought to the Court today the same point that he did not succeed on in 2004 and for the same reasons that William Young J gave back in 2004, confirmed by myself when rejecting the application for leave, this application for leave to appeal fails.  It is not necessary to deal with the views of Judge Walsh in 2005 in a different case.   The central point as to the purpose and effect of Article 9 of the Bill of Rights Act is a matter resolved in this Court.

[9]      Accordingly, this application for leave is dismissed.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Respondent cc: R F T