Tamihana v Police

[2024] NZHC 1229

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2024-416-008

[2024] NZHC 1229

BETWEEN

JOSEPH HONE TAMIHANA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

15 May 2024

Appearances:

Appellant in person

M J M Mitchell for Respondent

Judgment:

17 May 2024

JUDGMENT OF GRAU J

[Conviction appeal]

[1]    Following a Judge-alone trial before Judge Bolstad in the Gisborne District Court on 8 April 2024, Mr Joseph Tamihana was found guilty of a charge of intimidation.1 He was convicted and discharged. Mr Tamihana now appeals his conviction.

The allegation

[2]    On 15 June 2023 at approximately 4:30 pm, Mr Tamihana was at the Gisborne office of the Ministry of Social Development (MSD). He was in a discussion with the receptionist. It was alleged that Mr Tamihana began shouting at staff and was repeatedly asked to leave. As he was being escorted out, he made a “finger gun”, pointed that towards the staff and made a comment along the lines of “This is why you

1      Summary Offences Act 1981, s 21(1)(a) (maximum penalty of three months’ imprisonment or a fine not exceeding $2000); Police  v  Tamihana  [2024]  NZDC  7921  (Oral  Judgment  of  Judge T Bolstad) [Decision on Appeal].

TAMIHANA v NEW ZEALAND POLICE [2024] NZHC 1229 [17 May 2024]

guys get shot”. Outside the MSD office Mr Tamihana told a security guard, “I’m gonna come back and fuck shit up”, or something similar. He then screamed “AHHH” and slapped an open palm against a post. Mr Tamihana then left, and the MSD office was placed into lockdown.2

[3]    At Mr Tamihana’s first appearance on 19 June 2023, Judge Cathcart declined to grant Mr Tamihana bail.3 Mr Tamihana was subsequently granted bail on 10 July 2023. He was arrested for breaching his bail on 1 April 2024 after Police went to an address in response to a report of yelling and screaming there. It appears from the Court file that Mr Tamihana was then in custody until his Judge-alone trial on 8 April 2024, after which he was convicted and discharged.

The evidence at the trial

[4]The prosecution evidence at the trial was as follows:

(a)Ms Kelsey Hollis, a security guard at MSD, saw Mr Tamihana enter and go to the reception area. The conversation was going well, then it became loud. She approached and asked Mr Tamihana to leave. Another MSD staff member had already asked Mr Tamihana to leave. So had the receptionist. Ms Hollis saw Mr Tamihana raise his finger in a gun motion while saying “this is why you guys get shot”. Ms Hollis walked Mr Tamihana to the door. She then heard him make a comment that he was going to come back and “fuck things up”. He said that twice. He whacked a pole with his open hand.  Ms Hollis then spoke to the MSD manager and the office was placed into lockdown, which carried through to the next day.

(b)Ms Ringrose was the acting case manager at MSD that day. She noticed Mr Tamihana was “disgruntled” and she approached the reception area as a “heated” argument occurred. Her evidence was that the receptionist gave Mr Tamihana some cash and requested he return the

2      Decision on Appeal, above n 1, at [3].

3      Police v Tamihana [2023] NZDC 12698 (Notes of Judge W P Cathcart on Bail Application).

next day so that they could fully meet his requested needs. She said Mr Tamihana became agitated and demanded his needs be met then and there and would not accept that there was little more that could be done given it was so late in the day. Ms Ringrose said that it was not until after Mr Tamihana had left the office that the potential implications on her and other staff members’ safety kicked in.

(c)The officer-in-charge confirmed she had been called out to the MSD office following a callout made due to threats made. She arrived and then took statements from Ms Hollis and Ms Ringrose.

[5]    The  cross-examination  of  the  two  MSD  witnesses  was  undertaken  by Mr Sceats who had been appointed as counsel to assist following a successful application by the Police pursuant to s 95 of the Evidence Act 2006. Mr Sceats put to those witnesses that Mr Tamihana had only said “I wonder if this is the type of behaviour that made the guy down the South Island lose his mind and shoot everyone”. The witnesses did not accept that is what Mr Tamihana said. Mr Sceats also put to Ms Hollis that the receptionist had not asked Mr Tamihana to leave but she disagreed. Ms Ringrose disagreed with the suggestion that she had spoken to Mr Tamihana in a belittling way.

[6]    Mr Tamihana cross-examined the officer-in-charge. Mr Tamihana put to her that she had said she was “phoned and told that I threatened to shoot somebody”. She explained that she had not personally received such a call but agreed that someone from MSD must have called 111 and that is how Police get a job.

[7]    Mr Tamihana elected to give evidence. He said he remembered the day perfectly. He was “stressing”. He had been told on the phone that he would be granted

$120 assistance but when he spoke to the receptionist at the MSD office, she told him she could offer $60. It was when he asked if they could buy him nappies as well, the “other lady” (Ms Ringrose) approached and asked if everything was all good. The person he was speaking to said it was. But Ms Ringrose totally ignored her and carried on speaking, telling Mr Tamihana to come back tomorrow. He said that Ms Ringrose started mocking him.  That is when he said, “I wonder if this is the type of behaviour

that caused that man down the South Island to lose his mind and shoot everyone up”. That is when she called security who came and “marched” him out. He disputed making any hand gestures. Mr Tamihana acknowledged he was asked to leave but said he had gone to the office with the best intention. Mr Tamihana was apologetic to the security guards “in the sense that he was sorry that he had placed them in a situation where they needed to escort him out”.

The Judge’s decision

[8]    Following the Judge-alone trial and having heard the evidence of the three Police witnesses, and Mr Tamihana, Judge Bolstad delivered an oral decision.4

[9]    After reviewing the evidence, the Judge reminded herself of the burden and standard of proof, and that Mr Tamihana had no obligation to give evidence. She accepted Mr Tamihana’s evidence that he had gone to the MSD office with the best of intentions but found that things did not go as expected when he got there. The Judge found that a “heated argument” resulted and, being disgruntled by the advice he received, Mr Tamihana had made threats towards the MSD staff both in terms of the comments he made and his hand gestures. Further threats were also made when he was escorted out of the building.5

[10]   Judge Bolstad said that, while she understood Mr Tamihana was upset and may not have perceived his own comments and actions as intimidating, it was “certainly my view that … making any reference to any shooting in regard to MSD staff would be threatening in any situation”.6 The Judge accordingly found Mr Tamihana guilty.7

Approach on appeal

[11]   An appeal against conviction is brought pursuant to s 232 of the Criminal Procedure Act 2011. Under that section, in the case of Judge-alone trial, a first appeal Court must allow an appeal where it is satisfied that the Judge erred in their assessment

4      Decision on Appeal, above n 1.

5 At [20].

6 At [23].

7 At [24].

of the evidence to such an extent that a miscarriage of justice has occurred or a miscarriage of justice has occurred for any other reason.8

[12]   Appeals under s 232(2)(b) are conducted by way of rehearing.9 If this Court comes to a different view on the evidence, the trial Judge will necessarily have erred, and the appeal must be allowed. However, the appellate court is not to consider the issues de novo. It is for the appellant to show that an error has been made, taking into account the advantages a trial Judge may have had in assessing the evidence.10

Discussion

[13]   Mr Tamihana is self-represented in this appeal. He submits that the Police falsified evidence in order to “illegally and forcefully” enter his partner’s home where he did not live, and that he was then sent  to  prison for something he did  not  do.  Mr Tamihana says his lawyer applied for CCTV footage of the incident at MSD, and Police indicated they had tried to do so, but this was a lie. Mr Tamihana had emailed a case manager at MSD who said there was no record of anyone attempting to acquire the footage. He says had the footage been obtained, he would have been proven innocent.

[14]   Mr Tamihana considers that all of the people present at MSD that day should have been witnesses at his trial, particularly the receptionist, whom he was speaking to first before matters escalated, and other security guards who were present.

[15]Mr Tamihana also says that Judge Bolstad was biased in her decision making.

[16]   He further says he was not given the opportunity to cross-examine the two witnesses from MSD, and his lawyer would not read the questions he needed him to ask.

8      Criminal Procedure Act 2011, ss 232(2)(b) and (2)(c).

9      Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [32].

10     See the discussion on general appeals in Austin Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3]–[5].

[17]   Mr Tamihana alleges that the Police doctored information and blatantly lied in order to falsely imprison him. He also says that the Police officer lied in her testimony before the Court, and he would like her to be questioned again.

[18]   Ms Mitchell, for the Crown, submits that the time Mr Tamihana spent in custody and the lawfulness of Police entry onto property when arresting him are not relevant to the Court’s consideration in this appeal. She says that the District Court Judge was entitled to assess the evidence as she did; the evidence of the MSD witnesses was broadly consistent, and Mr Tamihana himself acknowledged making a comment about shooting. Ms Mitchell submits that it would be speculative to consider whether the Police case would be stronger or weaker by the possibility of finding relevant CCTV footage, or if other witnesses had been called. The receptionist did not need to be called because the charge related to what happened after he had spoken to her.

[19]   Ms Mitchell also argues that there is nothing in the notes of evidence, the conduct of the hearing, or her Honour’s decision that suggests bias or impartiality.

[20]   She also says that Mr Tamihana has not identified exactly how an inability to question witnesses has prevented him from receiving a fair trial.

[21]   Lastly, Ms Mitchell says that no specific details have been provided as to any alleged falsehoods on behalf of Police witnesses, nor has any evidence been raised that would disprove any fact found proven in the District Court. She says that any assessment of credibility was rightly for the District Court Judge, and there is no basis for this Court to take a different position on appeal, especially in the absence of fresh evidence. Ms Mitchell notes that, in any event, the case turned on the evidence of the MSD employees; the Police evidence was most relevant to what occurred after the event. So, their evidence is only really of “tangential relevance” to the determination of the District Court Judge.

[22]   In my view, the evidence of the prosecution witnesses was broadly consistent. And Mr Tamihana accepted he had made a reference to a shooting of MSD staff in the South Island. In these circumstances, having found that Mr Tamihana had made

threats in the terms alleged, it was open to the Judge to find the charge was proved. Saying to MSD staff in a MSD office that “this is why you guys get shot” and making a gun gesture clearly demonstrates an intent to cause fear or intimidate or at the least demonstrates knowledge that such conduct is likely to cause fear or intimidation. In other words, it must have been apparent to Mr Tamihana that the MSD staff would be intimidated or frightened by his conduct. That was a readily available inference.11

[23]   I have seen nothing to suggest the Judge was biased. She did intervene to tell Mr Tamihana to ask questions that were relevant. She was right to do so. She also asked Mr Tamihana questions to clarify his account of the events. Mr Tamihana had been concerned that it had been said he had threatened to kill someone, and that he had been arrested for threatening to kill, but the Judge explained to him that he was not facing that charge. It is my impression the Judge was concerned to get the best evidence from Mr Tamihana. Mr Tamihana thinks the Judge was biased because she accepted what the other witnesses said and disregarded what he said. The Judge was entitled to do so after hearing the evidence. That is not bias.

[24]   Mr Tamihana is concerned that he was not allowed to cross-examine the MSD witnesses. The decision to appoint a lawyer to cross-examine them was appropriate however, under s 95 of the Evidence Act, given the nature of the charge. In my view, Mr Sceats adequately put Mr Tamihana’s version of events to those witnesses. I acknowledge that Mr Tamihana feels that other questions should have been asked, however the cross-examination Mr Tamihana conducted himself demonstrates his focus on matters that went beyond the matters that were relevant to the charge. The same is apparent on the appeal. That is unsurprising because Mr Tamihana is not a lawyer, and I do not intend to criticise him. I observe that he conducted his appeal clearly and with courtesy, despite that he is very upset about this matter and has strongly held views that he did nothing wrong. However, the evidence demonstrates that the questions by the lawyer appointed to assist were appropriate and focussed.

11 See Matthew  Downs  and  others  (eds)  Adams  on  Criminal  Law  (online  looseleaf  ed,  Thomson Reuters] at [SO21.02], and the reference to Gillespie-Gray v Police HC Auckland CRI-2006-404-123, 22 September 2006.

[25]   Finally, that there was no CCTV footage or evidence from the MSD receptionist does not demonstrate an error or injustice in the trial.   I agree with     Ms Mitchell that the relevant witnesses were called at trial. The charge Mr Tamihana faced did not relate to his initial conversation with the receptionist. It related only to what he said to the security guard after he was told to leave. Nor was CCTV footage of the incident required. There is no evidence to support Mr Tamihana’s assertions that the Police have lied about the CCTV footage or about any other matters relevant to the charge. The Judge was entitled to find the charge was proven on the basis of the evidence of the witnesses who were involved in the incident.

[26]   Finally, Mr Tamihana’s complaint about his time in custody is not relevant to the appeal. He was in custody initially because a Judge declined bail, then again when he breached his bail. The time he spent in custody is inevitably the reason why the Judge did not impose any further penalty on Mr Tamihana after she had found him guilty.

Conclusion

[27]   I have not found any errors or injustice in Mr Tamihana’s trial or the decision of the Judge. For the reasons above, I dismiss Mr Tamihana’s appeal.

Grau J

Solicitors:

Crown Solicitor’s Office, Gisborne for Respondent cc:  J H Tamihana