EASTON v NEW ZEALAND POLICE [2018] NZCA 411

EASTON v NEW ZEALAND POLICE [2018] NZCA 411 [9 October 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA416/2018[2018] NZCA 411BETWEEN BENJAMIN MORLAND EASTONAppellantAND NEW ZEALAND POLICERespondentHearing: 5 September 2018Court: Brown, Duffy and Peters JJCounsel: Appellant in PersonR K Thomson for RespondentJudgment: 9 October 2018 at 11.00 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal against conviction andsentence is declined.___________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] On 15 March 2018 following a Judge-alone trial in the District Court atWellington, Mr Easton was convicted of common assault and sentenced to 80 hours'community work.1 He appealed against his conviction and sentence to the High Court.1 Police v Easton [2018] NZDC 8014.[2] On 27 June 2018, Thomas J dismissed the appeal.2[3] As with his appearance in this Court, on each occasion Mr Easton representedhimself in the lower Courts.[4] Mr Easton now seeks leave to bring a second appeal in respect of both hisconviction and his sentence.Facts[5] On the evening of 11 January 2018, the victim and his five children were atWaitaha Cove beach. The victim heard someone yell out something like, "Fuck off."He could not see who yelled this.[6] Mr Easton then came from a parked truck, approached the victim and pushedhim with his finger. The victim began to record the encounter on his cell phone.Mr Easton pushed the victim until he dropped his phone. He then punched the victimunder his right eye.[7] The victim tried to escape but Mr Easton continued to come at him. The victimgrabbed Mr Easton's arm and managed to wrestle him to the ground.[8] A witness heard the commotion and approached. He separated the two men,who at this stage were tangling on the ground. Mr Easton then went back to his truckand poured water over a bite mark which had been inflicted on him by one of thevictim's children. A second witness arrived shortly after and consoled the children,followed by two police officers.Thomas J's decision[9] Before Thomas J Mr Easton argued:2 Easton v Police [2018] NZHC 1553.(a) The trial Judge erred in not allowing evidence from a WellingtonCouncil representative and an expert in taking stills from cell phonefootage;3(b) The trial Judge dismissed his evidence before reading it;(c) The decision, if upheld, would demonstrate that access to justice isdependent on one's financial means;(d) The Judge may have been biased against him since he had had aprevious hearing with him in the past;(e) The Judge made the following incorrect assessments:(i) Mr Easton was convinced the victim had hit him; and(ii) One of the witnesses separated him from the victim.(f) The Judge failed to appreciate that the police evidence showed thevictim was lying;(g) Mr Easton did not have the right to be heard; and(h) In respect of sentence, Mr Easton should have been discharged due tohis contributions to the community.[10] Justice Thomas considered all of Mr Easton's arguments and rejected them.The essence of her discussion is as follows:[25] I am satisfied the Judge made no error. The witnesses Mr Eastonsought to summons had no bearing on the issue at hand – that is, whether ornot Mr Easton had intentionally applied force to the victim.Evidence regarding the making of the stills could not have any bearing on that3 Mr Easton wanted to call the Council representative in order to detail a series of matters whichhad caused friction between himself and the Council which the trial Judge held were irrelevant tothe trial; similarly, the trial Judge held there was no need to hear evidence from the expert ontaking stills given the stills themselves were produced into evidence and accepted by the police.issue. The evidence of the Council representative could be similarly assessed,with one very narrow point of difference.[26] If Mr Easton feared violence from Council representatives and hadpreviously feared for his safety, that might be relevant to his state of mind onthe day in question. However, there was no suggestion that the victim was aCouncil representative and no suggestion Mr Easton perceived himto be so. [28] In any event, Mr Easton's defence, that the victim was instead theaggressor and Mr Easton feared for his safety, was simply not supported bythe evidence. Those findings lay to rest any concerns that the evidence ofthe Council representative could have had a bearing on whether Mr Eastongenuinely feared for his safety.[30] Similarly, there is no merit in the second ground of appeal. The Judgeclearly preferred the evidence of the victim to that of Mr Easton and noarguments reasonably supporting a challenge to that preference have beenidentified. The victim had swelling and a mark supporting the claim thatMr Easton hit him, and the victim's evidence was supported by cell phonefootage. In contrast, Mr Easton's claim that the victim punched him was notonly unsupported by the evidence but also contradicted by it. [31] I note Mr Easton's concern that he had a prior involvement with theJudge. It is not unusual for a District Court Judge to hear a case involving aperson with whom she or he has dealt previously in a different context.There is nothing to support any suggestion of predetermination or that theJudge should have recused himself.[32] As to the issue of whether the appeal process poses risks toMr Easton's rights under both the New Zealand Bill of Rights Act 1990 andthe Universal Declaration of Human Rights, Mr Easton has had theopportunity to be heard. He has brought wide-ranging challenges to thedecision. Mr Easton has been subject to a process which observes rights tominimum standards of criminal procedure and has been able to exercise hisrights to natural justice through the appellate process.[11] In terms of sentence, Thomas J concluded that given the relatively low amountof community work and the nature of the attack, there could be no suggestion that theend sentence was manifestly excessive.44 At [33].Leave to bring a second appeal[12] In order to grant leave to bring a second appeal against conviction, we must besatisfied that:5(a) The appeal involves a matter of general or public importance; or(b) A miscarriage of justice may have occurred, or may occur unless theappeal is heard.[13] The test for leave to bring a second appeal against sentence is the same.6[14] A matter of general or public importance is one that raises an importantquestion of law having broad application beyond the circumstances of the particularcase.7 In relation to a first appeal against conviction, a miscarriage of justice is definedas any error or irregularity that has created a real risk that the outcome was affected.8This Court has noted that this definition is relevant to an application for leave to bringa second appeal against conviction.9Mr Easton's submissions[15] Mr Easton submits that there is a public interest in having his appeal heard forthe following reasons:(a) No case law was provided to him in advance of the High Court hearing;(b) If the first appellant court is found to have engaged in wilful andnegative interference in the delivery of justice the public needs to beaware of this, particularly when the affected party is a lay litigant;(c) The range of conclusions drawn by the Court were exaggerated whencompared to the evidence;5 Criminal Procedure Act 2011, s 237.6 Section 253.7 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].8 Criminal Procedure Act, s 232(4)(a).9 McAllister v R, above n 7, at [38].(d) In its written submissions to the High Court, the Crown allegedlymistyped s 232(4) of the Criminal Procedure Act 2011 (CPA) so as torefer to miscarriages of justice occurring in the trial, but not also "inrelation to" the trial, thereby misleading the Court; and(e) The question of whether the exclusion of evidence which contributes toa miscarriage of justice is permitted under s 8(1)(b) of the Evidence Act2006 is of public interest.[16] Similarly, in terms of a miscarriage of justice Mr Easton submits:(a) There is no rational truth to the victim's explanation of events;(b) The video footage shows that at the point when the victim was bendingdown to pick up his phone, during which he was at his most vulnerable,no assault occurred;(c) There has been a collaborative "operation" against Mr Easton; and(d) The victim's injuries were self-inflicted.Crown's submissions[17] The Crown raises several arguments in response:(a) The case law relied upon by the Crown was in relation to generalpropositions of law, copies of which were provided to Mr Easton afterthe hearing;(b) There is no evidence Thomas J relied on the Crown's writtensubmissions for her reading of s 232(4) of the CPA, and if she did theerror in transcription was minor;(c) Thomas J was entitled to defer to the trial Judge's assessment ofevidence and witness credibility;(d) Thomas J was correct to dismiss Mr Easton's proposed witnesses asirrelevant to the defences raised by him. There was no indication thatthe victim was a Council representative;(e) During the trial Mr Easton never put to the victim in cross-examinationthat he had punched himself; and(f) Given the attack was unprovoked and in front of the victim's children,the sentence of 80 hours' community service was not manifestlyexcessive.Discussion[18] We accept the Crown's submissions in each regard. After careful considerationof Mr Easton's arguments we find that none of the matters raised by him suggestanything untoward may have occurred during the trial such that a miscarriage of justicemay have occurred either in relation to conviction or sentence. Similarly, the issueshe raises, while wide-ranging, do not entail any matter of general or public importance.[19] Accordingly we are satisfied that the proposed appeal has, on the materialbefore us, no apparent merit and therefore leave to appeal should be declined.Result[20] The application for leave to bring a second appeal against conviction andsentence is declined.Solicitors:Crown Law Office, Wellington for Respondent