White v Police - [2017] NZHC 1983

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2017-488-000012 [2017] NZHC 1983

BETWEEN
KARLA WHITE AND CHRIS

MATTHEW FERRI Appellants

AND

NEW ZEALAND POLICE Respondent

Hearing: 10 August 2017

Appearances:

The Appellants in Person
M B Smith for the Respondent

Judgment:

18 August 2017

JUDGMENT OF HINTON J

This judgment was delivered by me on 18 August 2017 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………
Registrar/Deputy Registrar

Solicitors:
Marsden Woods Inskip & Smith, Whangarei

Parties:
K White and C Ferri

WHITE AND FERRI v NEW ZEALAND POLICE [2017] NZHC 1983 [18 August 2017]

[1] Mr Ferri and Ms White were found guilty of disorderly behaviour (likely to cause violence)1 following a Judge-alone trial in the District Court at Kaikohe on
1 March 2017. Mr Ferri was found guilty of a further charge of wilful damage.2 On

the disorderly behaviour charges, Judge Roberts imposed a sentence of 40 hours’ community work in respect of Ms White and 80 hours’ community work in respect of Mr Ferri. Judge Roberts also ordered that Mr Ferri pay reparation of $522.41 in respect of the wilful damage charge.

[2] Mr Ferri and Ms White have filed an appeal against conviction and sentence. The stated ground of appeal is “unconstitutional judicial misconduct, notwithstanding a substantial miscarriage of justice breaching tikanga and human rights”. Ms White filed a brief written submission and an affirmation on the morning of the hearing. Mr Ferri substantially relied on a document filed along with the Notice of Appeal. The key point raised in these documents seems to be that this Court has no jurisdiction on the basis that Her Majesty the Queen has no Constitution. Ms White also said that she was protesting to redress a wrong. Reference was also made to the Queen “in Right of New Zealand” having debt of many billions and to complaints Mr Ferri had laid regarding police actions generally. These matters were clearly not relevant to this case.

[3] I approach the appeal against conviction on the basis that relevant considerations include the jurisdiction of the New Zealand courts to hear the proceeding against the appellants; the relevance of the right to freedom of expression as recognised by s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA); and possible impropriety on the part of Judge Roberts in determining the proceeding.

[4] There is no mention in the notice of appeal regarding the grounds for the appeal against sentence, nor was any separate submission made in that regard. The argument against sentence seemed to be that it should fall away, along with the convictions. In addition to that argument, I will nonetheless consider whether the
sentence imposed in respect of the offending is manifestly excessive.

1 Summary Offences Act 1981, s 3.
2 Summary Offences Act, s 11.

District Court judgments

[5] Judge Roberts heard evidence from 11 witnesses, including the two appellants. From this he determined that the appellants had been involved in a prolonged…

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 White v Police

Details

AGLC: White v Police [2017] NZHC 1983
Case: [2017] NZHC 1983
Decision Date: 18 August 2017

CaseChat Overview and Summary

Karla White and Chris Matthew Ferri appeal against their conviction and sentence following a Judge-alone trial in the District Court at Kaikohe. They were found guilty of disorderly behaviour and, in Mr Ferri's case, wilful damage. The appeal against conviction is based on alleged unconstitutional judicial misconduct, while the appeal against sentence argues that the sentences were manifestly excessive. The court considered the jurisdictional challenge, the right to freedom of expression, and the propriety of the trial judge. The court found no merit in the jurisdictional challenge, as the issue had already been determined in a previous judgment. The court also found that the right to freedom of expression did not justify the appellants' conduct and that the trial judge applied the correct legal test. The court rejected the allegation of impropriety against the trial judge, as it was unfounded. The appeal against conviction was dismissed.

Regarding the appeal against sentence, the court found that the sentence of 80 hours' community work for Mr Ferri was excessive, and 40 hours' community work would have been appropriate. The court also found that Ms White should have been fined $250 instead of being sentenced to 40 hours' community work. The appeal against sentence was allowed, and the sentences imposed by the trial judge were quashed. In their place, the court imposed a sentence of 40 hours' community work on Mr Ferri and a fine of $250 on Ms White.

Orders