IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CRI [2016] NZHC Appellant. NEW ZEALAND POLICE Respondent

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CRI [2016] NZHC 2359 BETWEEN AND MATTHEW BROWN Appellant NEW ZEALAND POLICE Respondent Hearing: 3 October 2016 Appearances: Appellant in Person M L Wong for Respondent Judgment: 5 October 2016 JUDGMENT OF CLARK J Introduction [1] Mr Brown faced a charge of wilful trespass. 1 He did not appear for his trial on 27 April The Judge proceeded in Mr Brown s absence. [2] In a reserved judgment delivered 4 May 2016 Judge Hastings found the charge of trespass proved and entered a conviction. 2 Mr Brown appeals. Background [3] Under the authority of the Speaker of the House of Representatives, on 1 July 2014 Mr Brown was served with a trespass notice. Mr Brown himself, in his interview with the Police, explained the reason for service of the trespass notice. Following what he described as a peaceful protest in the foyer of Parliament he said he stubbornly refused to leave the foyer in the hope of meeting someone from the Prime Minister s office to discuss the violations that have occurred. Mr Brown 1 2 Trespass Act 1980, s 4(4). Police v Brown [2016] NZDC At sentencing on 4 July 2016 Mr Brown was ordered to appear for sentence if called on within six months. BROWN v NEW ZEALAND POLICE [2016] NZHC 2359 [5 October 2016]

2 knew that if he restricted himself to those areas where protest is allowed he would achieve nothing. He was trespassed from Parliament for two years. [4] The charge on which he was convicted and which is the subject of this appeal arose when Mr Brown returned to Parliament on 10 November On his own description he walked into the foyer of the executive wing and notified security that he was there to breach the trespass notice. A security officer asked Mr Brown to accompany him outside where they waited for the arrival of a security supervisor employed by Parliamentary Services. The security supervisor, Mr Noanoa, was one of two witnesses called by the Police at the trial. Mr Noanoa s evidence was that Mr Brown told him he wanted to get arrested and go to Court. At Mr Noanoa s instigation a police constable arrived a few minutes later. The constable who also gave evidence at the trial, asked Mr Brown why he was there and Mr Brown replied I have an axe to grind and this is the best way. [5] Mr Brown was asked to leave and was told if you do not leave you will be arrested for wilful trespass. He did not leave and was arrested accordingly. The District Court decision Mr Brown s non-appearance [6] Mr Brown did not appear on the day of his trial. The Judge considered whether he should proceed in Mr Brown s absence. There was evidence before the Judge that Mr Brown was aware of the hearing date and time. (a) In early February 2016 Mr Brown confirmed the trial date of 27 April 2016 by . (b) In a letter of 30 March 2016 Mr Brown sought the issue of some 35 witness summonses for the hearing. (c) In a Minute dated 6 April 2016 Judge Davidson directed that none of the summonses should issue. Judge Davidson also declined to transfer the trial to Dunedin because the alleged offending and the

3 prosecution witnesses were based in Wellington. Mr Brown was aware of this Minute because he apparently sent an abusive reply, copied to the Court Registry who sent him the Minute. (d) In a letter to the Registrar Mr Brown acknowledged that he attempted to summons witnesses for the hearing on 27 April while also appearing to argue that he would not attend the hearing date because he was not consulted about the suitability of the date. [7] As the fixture was set down in February 2016 Judge Hastings considered Mr Brown had had sufficient opportunity to seek an adjournment and had no reasonable excuse for his non-attendance. [8] Referring to a letter to the Registrar dated 23 November 2015 in which Mr Brown wrote that he was utterly forced to provoke the wilful trespass charge in order to initiate a fast-track defended hearing it appeared to the Judge that Mr Brown had engineered the trespass charge in order to use the Court as his forum for airing his various grievances against (in Mr Brown s words) the New Zealand Police, the Courts, the Police Complaints Authority, other Government agencies and successive Governments. [9] Mr Brown had acted upon the fixture for a defended hearing given in February 2016 by seeking to summons witnesses yet had not appeared. By not appearing Mr Brown had exhibited a degree of disdain for the proceedings he himself said he provoked. 3 As it was a simple trespass charge, which Mr Brown said in a letter to the Registrar dated 23 November 2015 he was forced to provoke in order to initiate a fast track defended hearing, the Judge decided not to issue a warrant for his arrest but to proceed with the trial in Mr Brown s absence under s 122(3) of the Criminal Procedure Act At [4].

4 The trespass charge [10] The Judge found no issue with the lawfulness of the trespass notice. It was properly authorised. While it impaired Mr Brown s right to protest, the impairment was rationally connected to the purpose of preserving the safety and security of the Parliamentary buildings and staff. Mr Brown s right to protest was restricted to elsewhere on Parliamentary grounds and the restriction was no more than was necessary to achieve the purpose of the restriction. It permitted protest elsewhere within the Parliamentary precinct which Mr Brown chose to ignore. [11] Having been issued with a warning Mr Brown wilfully trespassed within two years of being warned. The Judge was left in no doubt that the trespass was wilful. Mr Brown admitted as much in his interview. He said he was at Parliament to violate the trespass order against me and I went there wilfully. 4 [12] The statutory defences were unavailable to Mr Brown. There was no evidence that he trespassed for his own protection or for the protection of some other person or because of some emergency involving his property or the property of some other person. Consequently, Judge Hastings found the charge proved. The appeal [13] Addressing first the issue of the summonses Mr Brown said that the Court cannot set a summons aside unless it creates or presents a security risk. The decision by Judge Davidson (referred to in para [6](c) above) amounted to an extreme violation of Mr Brown s rights, he submitted, because it followed a hearing conducted in his absence. Mr Brown also submitted that, because Judge Davidson had acted for him in the late 1990s when he knew him by another name, there should have been a hearing by a different Judge. He appealed that decision but the appeal has been ignored At [10]. Following the hearing of the appeal I established from the Court file that the appeal was abandoned as recorded in a Minute of Davidson J dated 31 May 2016.

5 [14] Mr Brown said this appeal was about making the Police accountable for endangering his life and for making him unemployable. Despite being in a witness protection programme his identity has been revealed by the Police. [15] I permitted Mr Brown to occupy most of the time allocated for the half-day hearing. He spoke passionately, angrily at times, about the way in which his rights had been violated over the years by a number of public institutions, including judges, but most particularly the Police. I feel confident that Mr Brown s own description of his grounds of appeal provides the best summation of his arguments. [16] Mr Brown claims breaches of the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990 and the International Covenant on Civil and Political Rights He says he has been subjected to bias and prejudice and denied his right to present a defence at his defended hearing. Thus he was denied his right to a fair and public hearing. As well he has been denied the rights and benefits of the principles of natural justice through the refusal of the Courts to observe and adhere to the above legislation. Mr Brown says he lives with six unjustifiable convictions because evidence exists to vindicate him in each case. The Police Complaints Authority, the New Zealand Police and the Courts continue to endanger his wellbeing and subject him to degrading treatment, strip him of his dignity, integrity and his right of protection against arbitrary interference in his privacy, attack his character and deny his lawful right to protection under the law. [17] Mr Brown provided a number of documents in support of his appeal primarily the seven documents listed in the notice of appeal as exhibits required for the hearing. Assessment Witness summons [18] Justice Simon France issued a Minute on 15 September 2016 addressing Mr Brown s list of the 29 witnesses he proposed to have at the hearing of the appeal.

6 [19] The witnesses included the Prime Minister, members of the New Zealand Police, representatives of the health sector, the Independent Police Conduct Authority, an employee of the New Zealand Privacy Commission and private legal practitioners. [20] Justice Simon France directed that if, having heard argument, it appeared to the Judge hearing the appeal that some of the witnesses should be called the appeal would be adjourned to allow that to happen. If Mr Brown was, however, unsuccessful in his application the appeal would proceed on 3 October and the parties should be ready to argue it. As it was one of his grounds of appeal Mr Brown was invited to file evidence concerning the circumstances of his absence from the hearing before Judge Hastings. [21] Mr Brown states in his list of witnesses that every police officer and member of the public who he has listed can provide evidence to show that he is continually subjected to a culture of extreme, abusive police conduct. Members of the public listed are said to have unlawfully or immorally aided the Police to blacken his name or had grossly discriminated against him or had overtly breached the law. Every witness would, Mr Brown said, under cross-examination display a sobering culture of immoral lawlessness against him to the degree that individuals had intentionally endangered his life and the wellbeing of his partner, family and friends. [22] After hearing Mr Brown, and having read Ms Wong s written submissions, I intimated during the course of the hearing that the evidence from these witnesses had no bearing on the conviction for trespass and the narrow issue raised by the appeal against that conviction. [23] I understand that Mr Brown sees it differently and draws a link between the two because the whole purpose of his contrived arrest and trespass at Parliament was to go to Court and air the violations he maintains have occurred. That is why, when asked why he was at Parliament by one of the police constables, he said: I have an axe to grind and this is the best way. Unfortunately for Mr Brown the appeal process cannot be used for that purpose. I sought to impress upon Mr Brown during the course of the hearing the limited appeal jurisdiction.

7 [24] I now set out the reasons for the view I reached during the course of the hearing that none of the witnesses should be called and that it was not necessary to adjourn the appeal to allow that to happen. (a) If an appeal court thinks it necessary or expedient in the interests of justice it may order the examination of witnesses but the evidence and exercise must be relevant to the appeal. (b) This appeal is against a conviction which, on the evidence before the District Court Judge, was inevitable. Mr Brown deliberately breached the trespass notice. He had his reasons but he did it with full knowledge of the consequences and indeed invited the consequences. In response to my query Mr Brown confirmed that he had indeed said what he is recorded in the District Court judgment as saying namely, that: (i) he stubbornly refused to leave the foyer in the hope of meeting someone from the Prime Minister s office to discuss the violations that have occurred to him; (ii) he did not leave the foyer when requested because he needed to be arrested; (iii) when he returned to Parliament on 10 November 2015 he did say he wanted to be arrested and go to Court; and that (iv) he was warned that if he did not leave he would be arrested for trespass and he did not leave. (c) The issue raised by this appeal is whether the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. Mr Brown s proposed evidence, even if it met the threshold for admissibility of fresh evidence on appeal, simply lacks relevance to this narrow question.

8 [25] It follows that it is not necessary or expedient in the interests of justice to order the examination of any of the witnesses in Mr Brown s list for the limited purpose of this appeal. [26] Section 232 of the Criminal Procedure Act 2011 requires the first appeal court to allow an appeal if satisfied that the Judge erred in his assessment of the evidence or that a miscarriage of justice has occurred for any reason. The evidential basis upon which Judge Hastings found the charge proved was confirmed by Mr Brown to be correct. I consider it was a sufficient evidential basis upon which to find proved the elements of the charge of trespass. Result [27] The appellant has identified no error or miscarriage of justice arising out of Judge Hastings decision. The appeal is dismissed. Karen Clark J Solicitors: Crown Law Office, Wellington for Respondent