Tamihere v Police

[2016] NZHC 539

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2016-404-017 [2016] NZHC 539

BETWEEN

ROBIN TAMIHERE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 March 2016
Counsel:	R Tamihere, in person, Appellant J V Barry for Respondent
Judgment:	30 March 2016

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

30 March 2016 at 2.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

Copy to:

R Tamihere, Appellant

TAMIHERE v NEW ZEALAND POLICE [2016] NZHC 539 [30 March 2016]

[1]      Mr Tamihere appeals against two convictions for contempt and the associated sentences.  In brief, Judge Collins found Mr Tamihere in contempt for:

(a)      Refusal to take his place in the dock; and

(b)      Repeatedly interrupting him.

[2]      Mr Tamihere was sentenced to 14 days’ imprisonment.

[3]      Judge Gibson found Mr Tamihere in contempt for calling him a “criminal”. The Judge sentenced Mr Tamihere to 10 days’ imprisonment.

[4]      Mr Tamihere appeals, in short, on the basis that the police and the Judge have acted fraudulently in their dealings with him.   Mr Tamihere clarified in argument before me that by fraudulent he meant acting unlawfully, without jurisdiction and without authority.

Background

[5]      Mr Tamihere was facing charges of breach of the peace and two assault charges.   On 17 November 2015, he appeared before Judge Collins.   In an oral judgment, Judge Collins observes:1

[1]       In terms of the contempt, I do hold you in contempt of court.  When you  appeared  this  morning,  you  appeared  with  a  gentleman  who  was standing alongside you.   I asked him to take a seat.   He refused.   The courtroom was full of people.  It was a very busy case review list.

[2]       You advised that you did not recognise the Court and you repeatedly made reference to your name in a way which was exceptionally difficult to understand. You then repeatedly refused to take your place in the dock. You repeatedly spoke over me.  You repeatedly interrupted me when I asked you not to and then you remonstrated with the Court before attempting to leave.

[6]      Mr Tamihere was sentenced to 14 days’ imprisonment.  No reasons for the

length of sentence were given.

1      Police v Tamihere [2015] NZDC 22900.

[7]      On 15 December 2015, Mr Tamihere appeared again in the District Court, this time before Judge Gibson.   The Judge describes what he says unfolded as follows:2

[1]       The defendant Robin Tamihere appeared with a number of others on charges made in respect of an allegation of a breach of the peace with respect to the entry of property at 77 Cook Street, Auckland and also two assault charges.

[2]       He has been remanded several times on these matters and is for the purpose of the proceeding, self represented, although for the purpose of the contempt that I am dealing with, has seen the duty solicitor Ms C A Lintott who has advised him in relation to the matter and conveyed his apology for the contempt and which the defendant himself has also verbally confirmed from the dock.

[3]      This morning was that the defendant appeared and would not acknowledge his name but indicated that he appeared on behalf of the named defendant.   On being told he could not appear on behalf of someone else unless he was a barrister or solicitor there was some further discussion in which there was some provisional acceptance by the defendant that he was the person named in the charging documents.  In any event the matter was stood down so that Mr Winter who was appearing for other defendants, could speak to him about matters.

[4]       The defendant himself had been imprisoned for contempt of Court by Judge Collins when he last appeared on these matters on 17 November

2015, the sentence being 14 days imprisonment.   I have not seen Judge Collins’ notes and so do not know what the contempt was.  But on his return to the dock and having been advised by me that I intended to remand him on

bail to 28 January 2016, the defendant disputed my jurisdiction and indicated that he did not care about the terms of bail, and did not accept what the terms
were.  Consequently I required a new bail bond to be signed.  That bail bond is to be on the same terms and conditions as the last bail bond signed by the defendant.

[5]       The defendant at that point continued to protest my jurisdiction and said that I was a criminal.   At that point I advised the defendant that I considered that accusation to be a contempt and stood the matter down so that he could take advice and the matter could be called later and would subsequently be dealt with by me.

[8]      At sentencing, Judge Gibson identified a starting point for wilfully insulting a Judge as 21 days (citing Greer v Police3), and uplifted that sentence by eight days as it was the second contempt in the same proceeding.   A discount of 18 days was

subtracted to account for an apology given by Mr Tamihere.

2      Police v Tamihere [2016] NZDC 1244.

3      Greer v Police HC Palmerston North AP53/97, 17 October 1997.

Transcripts

[9]      Justice Woodhouse directed that transcripts of the two hearings be provided. I have been advised that this is not possible in relation to the hearing before Judge Collins.  It appears that the audio-transcription failed.  However, a copy of the log notes was provided to me, and a copy given to Mr Barry and to Mr Tamihere.  That log records the following:

09.35.28	FTR on	AUDIO does not seem to be working – FTR on Mics are on but for some reason not working – Judge Collins elects to proceed
11.18.38	TAMIHERE	Self Rep
11.20.19	Refuses to get into dock
11.21.51	Judge orders arrest for contempt	Judge orders arrest for contempt
11.29.36	ARRESTED TAMIHERE and MONGA
11.29.42	RONGONUI	Pike
11.30.47	In relation to contempt arrests	S365(2) of the CPA
11.31.48	Returning  to RONGONUI
11.32.12	TAMIHERE and MONGA	Stood down in custody
15.45.38	HH outlining facts       for TAMIHERE and MONGA
15.49.42	ADJ – PM	ADJ - PM
16.09.21	Tamihere    – RIC – Recall	No   Counsel   –   Rejected   Legal representation
16.09.47	HH outlining	Watkins – Defendant has declined

issue        of Contempt	legal representation
16.11.54	Defendant  doesn’t  submit to  the authority of the court
16.13.21	Known     as ROBIN
16.15.02	Remanding        Charges        to 15/12/2015   at    9:00am   before Judge Collins
16.15.16	Will        be seeking Bail
16.16.07	Turning    to charges	FRBTC  to  15/12/2015  at  9:00 CALLOVER
16.18.23	SENTENCED TO 14 days IMP
16.18.43	END      OF JUDGMENT
16.20.13	MONGA   – RIC – Recall
16.20.15	HH          – Summary
16.20.01	Contempt Issue
16.23.03	JUDGMENT for TAMIHERE
16.27.42	End        of Judgment
16.30.19	ADJ - END	ADJ - END

[10]     Mr Barry, in response to concerns raised by me as to the absence of a record in relation to Judge Collins’ hearing offered to make the Police prosecutor available to give evidence on what transpired.  I ultimately resolved that that was unnecessary given the log notes which appear to record the relevant steps in the proceeding as I will explain below.

[11]     The transcript of part of the hearing before Judge Gibson has been provided. Salient passages include:

The Court:

Thanks, so I had expected Mr Wincall to appear but that’s all right. You understand  the  position  is  that  I  stood  the  defendant  down  in  custody because at the point where I was about to release him on bail he protested my jurisdiction and called me a criminal.

Ms Lintott:

Yes Sir, I’ve been apprised of that.

The Court:

So the contempt is the calling me a criminal. So you’re aware of that?

Ms Lintott:

I’ve just been apprised of that and I have been instructed most specifically to

offer apologies.

The Court:

Well that  certainly reduces  what  will  otherwise be the sentence  but  the apology I would like to hear from Mr Tamihere.

Ms Lintott: There you go. Mr Tamihere:

Sorry, I can’t hear you your Honour.

Ms Lintott:

He would like the apology from you directly to His Honour for calling him a criminal.

Mr Tamihere:

Yes, I wholeheartedly apologise Your Honour for the outburst.

The Court:

All right, I will just…

Ms Lintott:

With respect to the jurisdiction Sir I’ve had discussions with my learned

friend–

The Court:

That’s another issue, I mean you know I can, yes.

Ms Lintott:

And I’ve discussed with the prosecution we worked out what’s going to happen in respect of discovery sought and I think that’s dealt with.

The Court:

Yes.  I  mean  I’m  not  holding  him  in  contempt  by  saying  I  don’t  have jurisdiction it’s the wilfully insulting the Court.

The grounds of appeal

[12]     Mr Tamihere provided six bundles of documents setting out, in short, his many complaints at the conduct of the police and the two Judges in his proceedings before the District Court.  It is unnecessary to attempt to summarise the contents of those documents in detail as their central thrust is as stated at para [1], namely that the Police and the Judges have acted fraudulently, without proper jurisdiction and

unlawfully. A sample of claims are sufficiently illustrative:

(a)	The   New   Zealand   Police   committed   fraud	by	commencing	a
continuing on with the Court sitting;
(b)	Judge Collins committed fraud by; (i)       Harassing the appellant;

(ii)      Acting outside of his office;

(iii)     Violating his judicial codes of conduct; (iv)     Violating the appellant;

(v)      Making his orders.

(c)       Judge Gibson committed fraud by, among other things: (i)     By exercising judicial powers over Mr Tamihere;

(ii)      Refusing to answer questions;

(iii)     Refusing to grant Mr Tamihere status as a barrister;

(iv)     By refusing to allow Mr Tamihere to represent himself; (v)     By acting callously towards him.

[13]     In one affidavit Mr Tamihere purports to elaborate on the various acts of fraud and there is a purported transcript of what was said.  It includes the following:

Appellant indicated he was “here to represent Tamihere”

Gibson J asked – “are you Tamihere”

Appellant – “No”

Gibson J – “I can’t hear you today”

Appellant replied – “That that name is my private property”

Gibson J – “So I’m going too, unless you identify you as Tamihere, I’m going to  issue a warrant for Mr Tamihere’s  arrest and  you  can  go into custody.”

Appellant  replied  –  “Are  you  referring  to  the  DEAD  PERSON  or  the

LIVING PERSON your honour?”

Gibson J – “The defendant the defendant.”

Appellant replied – “Sorry I can’t hear you.”

Gibson J – “The defendant the defendant the defendant.”

Appellant  replies  –  “I’m  here  as  the  defendant’s  personal,  personal representative.”

Gibson J – “Yes well you don’t have any status unless you’re a barrister or solicitor.”

Gibson J – “Mr Tamihere, um call Robin Hughes Noema Tamihere, if he

doesn’t appear I’ll issue a warrant for his arrest.”

Appellant replies – “I appear to represent that person your honour.”

Gibson J – “I’ve said I’m not listening to you as the representative, if you aren’t the defendant, identify yourself then we can deal with it?”

Appellant – “I will conditionally accept the offer, the contract associated with the name, your honour, upon proof of claim, that you can prove, that I am that DEAD person as specified on my birth certificate, that I have here?”

Gibson J – “I’m getting sick of this, are you Robin Hughes Noema Tamihere or not?”

Appellant – “That name is private property and I recognize that name as my private property your honour.”

Gibson J – “So that is you?”

Appellant – “The name is my private property and I recognise that name as

my private property your honour.”

Gibson J – “That is you?”

Appellant – “Is that name my private property, your dealing with?  Are you dealing with the NATURAL PERSON?   I stand here as the NATURAL PERSON.”

Gibson J – “I’ll take it that you are Mr Tamihere?”

Appellant – “I OBJECT to that your honour, I OBJECT because that is putting   me   in   controversy   and   controversy   is   in   breach   of   my INALIENABLE   RIGHTS   which   I   reserve.      I   reserve   all   of   my fundamentally God given inherent inalienable rights and as per, is there any objections to you, to me reserving my inalienable rights your honour?”

Gibson J – “Mr Tamihere unless you accept you are Mr Tamihere….”

[14]     There is then a further document titled “Fee Schedule and Relief Sought in

Prayer”.  It seeks, among other things, damages of $137,600,000.

[15]     In argument before me, Mr Tamihere submitted that he was not given an opportunity to confer with counsel about the two acts of contempt and that the transcript of the proceedings before Judge Gibson was incomplete.

Jurisdiction

[16]     Section 232 of the Criminal Procedure Act 2011 prescribes that the High Court can only allow an appeal against conviction if a District Court Judge erred in his or her assessment of the evidence to such an extent that there has been a miscarriage of justice; or if, for any other reason, there has been a miscarriage of justice.

Contempt

[17]     For present purposes, s 365 of the Criminal Procedure Act 2011 states:

365     Contempt of court

(1)      This section applies if any person—

(a)       wilfully insults a judicial officer, or any Registrar, or any officer of the court, or any juror, or any witness, during his or her sitting or attendance in court, or in going to or returning from the court; or

(b)       wilfully interrupts the proceedings of a court or otherwise misbehaves in court; or

(c)       wilfully and without lawful excuse disobeys any order or direction of the court in the course of the hearing of any proceedings.

(2)      If this section applies,—

(a)       any constable or officer of the court, with or without the assistance of any other person, may, by order of a judicial officer, take the person into custody and detain him or her until the rising of the court; and

(b)       the judicial officer may, if he or she thinks fit, sentence the person to—

(i)       imprisonment for a period not exceeding 3 months;

or

(ii)      a fine not exceeding $1,000 for each offence.

Assessment

[18]     Mr Tamihere alleges 70 or so unsubstantiated acts of fraud by the police and Judges Collins and Gibson.  They have no obvious merit.  Mr Tamihere appears to treat every act adverse to his interests as fraudulent.  While some of the allegations made against the police allege fabrication (for example, in terms of the charging documents), Mr Tamihere is essentially alleging that the police and the courts have acted without proper lawful authority.   Ordinarily, I would strike them out as an abuse of process,  but  given the  significance of  a sentence of imprisonment  for contempt I have examined whether the Judges observed the minimum standards of justice required to convict and sentence for contempt as stated by this Court in

McAllister v Solicitor-General.4   This gives rise to four key issues which provide the relevant litmus test in this context, namely:5

(a)       Whether there was a proper factual basis for contempt;

(b)Whether the Judges identified the act or acts giving rise to the alleged contempt to Mr Tamihere;

(c)       Whether Mr Tamihere was given the opportunity to take legal advice about the alleged contempt;

(d)Whether Mr Tamihere was given the opportunity to be heard about the alleged contempt.

The first contempt

[19]     I am satisfied that Judge Collins was correct in finding that Mr Tamihere’s refusal to take his place in the dock (which is not denied) and the repeated interruptions  of  the  Judge  amounted  to  contempt  of  Court  for  the  purposes  of s 365(1)(b) and (c).  Problematically, the Judge did not record in his oral judgment the process followed for the purposes of finding and then imposing a conviction for contempt. As noted above, there is no transcript record available to me as to what in fact transpired in Court on the day in question.  I raised with Mr Barry my concerns that Judge Collins’ judgment does not appear to confirm or record that Mr Tamihere was made aware of the various acts of contempt and/or given the opportunity to take advice and then to be heard on it.  However, the log notes provided to me clearly outline in summary form the following:

(a)       Mr Tamihere refuses to get into the dock; (b)   The Judge orders arrest for contempt;

(c)       Mr Tamihere was taken into custody;

(d)      Mr Tamihere rejected legal representation;

(e)       There is a discussion outlining the issue of contempt; (f)        Mr Tamihere again declines legal representation;

(g)      Mr Tamihere indicates that he does not submit to the authority of the

Court.

[20]     I am able to infer from the foregoing record that the requisite minimum steps were taken, namely that  the nature of the  alleged  contempt  was  set  out  to  Mr Tamihere, that he was given the opportunity to take legal advice and that he refused to take it.  Mr Tamihere also confirmed in this Court that he did not submit to the authority of the Court.

Length of sentence

[21]     As Judge Collins’ judgment contains no reasons for the sentence imposed on Mr Tamihere, I will examine afresh whether the sentence imposed was appropriate to the circumstances.

[22]     Mr Barry identified two High Court judgments which he says provided a proper frame for the assessment of the type and length of any sentence for the type of contempt in this case.   The first of those cases was Mair v Wanganui District Court.6   In that case Heron J upheld a sentence of 21 days imprisonment relating to an attempt by the appellant to say a karakia while the Judge was present although the Judge had ordered him not to do so and had given him the opportunity of saying a karakia before the hearing began.  Heron J observed:7

I think 21 days may have been a severe sentence for Mr Mair but that said I think the power which the courts have for punishing for contempt had to be spelt out with some emphasis.   Concern at the way some cases had been heard was, I think, apparent to the community and the wider public interest in the protection of the administration of justice had to be maintained across the land.

I am certainly not prepared to say such a sentence was manifestly excessive although probably only a few days sentence actually served would have been enough to make it plain to Mr Mair that such obstruction was regarded very seriously.   In the end having regard to parole provisions and release date mechanisms, the sentence actually served was seven days.

[23]     This serves to illustrate the intolerance of this court to obviously obstructive behaviour by litigants who refuse to observe the directions laid down by a Judge for the proper conduct of a proceeding.  Plainly also, Mr Tamihere’s conduct in this case, in my view, is more serious than the conduct complained about in Mair.

[24]     The second decision cited to me was Greer v Police.8    That case concerned the defendant calling the Judge a “dickhead”.  Gendall J affirmed a 21 day sentence of imprisonment in the following terms:9

Despite Mr Greer’s pleas to me that his “rights”, he says, were being trammelled by the learned District Court Judge which he says has been done in the past, he is utterly without merit in proceeding on an appeal against an order for committal and sentence of contempt.  Any litigant dissatisfied with a decision of a Judge has certain rights of appeal.  Beyond that they may not go, and they may not use the public arena of the court designed to procure the administration of justice in a manner where they may contemptuously insult legal officers so as to bring the whole process of the administration of justice into disrepute.  If it were otherwise the case chaos and anarchy would reign.

[25]     I  do  not  consider  that  Mr  Tamihere’s  actions  in  this  case  were  as contumelious as the actions of Mr Greer.   I am also mindful of the fact that some caution is needed to differentiate open and obvious insults to a Judge and acts by a defendant purporting to assert rights, including rights of audience.  Having said that, Mr Tamihere’s refusal to stand in the dock was plainly wrong, as was his admitted insistence that  the judge answer his  questions.   A sentence then of 14  days  as compared to the sentences laid down in Mair and Greer cannot be said to be manifestly excessive or obviously wrong.

[26]     For  completeness,  I  have  considered  whether  in  light  of  an  apology apparently offered to Judge Collins (but not recorded in his judgment) a lesser sentence should have been imposed.  I note it does not appear that an apology was offered either in the Mair or the Greer cases.  For my part, a sentence of 14 days is

borderline of excessive in a context where a litigant apologies for his behaviour. Indeed, a genuine apology ought to attract a substantial discount.  But in the end, I am satisfied that the sentence of 14 days imprisonment was not manifestly excessive or obviously wrong.

The second contempt

[27]     Judge Gibson provided the reasons for the imposition of a conviction and sentence for contempt.  The Judge records that Mr Tamihere called him a “criminal” (which is not denied).  In terms of verbal abuse, it is about as bad as it gets. But I accept Mr Tamihere’s submission to me that, like his definition of fraud, he meant that  the  Judge  was  acting  outside  his  jurisdiction,  unlawfully,  and  therefore criminally.  Be that as it may, the Judge advised the defendant that he considered that accusation to be in contempt, stood the matter down and allowed Mr Tamihere the opportunity to take legal advice.  The Judge records that he was advised by a duty solicitor and accepted that he was in contempt. He apologised to the Court.   The Judge then referred to High Court authority in terms of starting point, namely Greer, and uplifted it by seven days to take into account that Mr Tamihere had only recently been found in contempt.  I consider that it was available to the Judge to uplift for that aspect, though I disagree that a further one-third of sentence uplift was appropriate in the context.  That, however, was more than offset by the very generous discount of

18 days.   In the light of the seriousness of the accusation levelled at the Judge, a

sentence of 10 days’ imprisonment for contempt of court was within range.

Outcome

[28]     For the foregoing reasons, therefore, I dismiss the appeal by Mr Tamihere.