MATCHES v NEW ZEALAND POLICE [2020] NZCA 104

MATCHES v NEW ZEALAND POLICE [2020] NZCA 104 [21 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA27/2020[2020] NZCA 104BETWEEN BRENT LEONARD MATCHESApplicantAND NEW ZEALAND POLICERespondentCourt: Goddard, Mallon and Thomas JJCounsel: Applicant in PersonJ E Mildenhall for RespondentJudgment:(On the papers)21 April 2020 at 10.00 amJUDGMENT OF THE COURTA The application for extension of time to file an application for leave toappeal is granted.B The application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)[1] Mr Matches was found guilty in the District Court following a Judge-alonetrial on one charge of stopping another person in a public place with intent tofrighten him.1 His appeal against conviction was dismissed on 20 November 2019.2He now seeks leave out of time for a second appeal against conviction3 on the basisthat a miscarriage of justice has occurred, or may occur, if leave is not granted.The Crown opposes the application.Extension of time[2] Mr Matches' notice of appeal was filed late but he has explained the delay.4The Crown does not oppose his application for an extension of time and we aresatisfied it is appropriate to grant that application.Background[3] Mr Matches had been involved in ongoing Family Court proceedings overmany years. He was unhappy with the outcome of those cases and openly critical ofthe decisions of various Family Court Judges, including those of Judges Ian McHardyand Timothy Druce. On 19 February 2018, Judge McHardy was leaving theAuckland District Court and walking up Federal Street when Mr Matches confrontedhim, blocking his path and forcing him to stop. Mr Matches addressed Judge McHardyin strident terms, calling him, amongst other things, a "child abuser". He toldJudge McHardy that "they would be coming" to his home. The reference to "they"was understood to refer to Mr Matches' supporters and others who protest against whatthey see as injustices perpetrated in the Family Court outside targeted Family CourtJudges' homes.[4] Judge McHardy described Mr Matches' manner and tone of voice as "angry".He was forced to move around Mr Matches to continue walking up Federal Street.Mr Matches yelled increasingly loudly at him as he walked away. Judge McHardysaid he was frightened by Mr Matches' actions in stopping him and found theexperience unnerving.1 Police v Matches [2018] NZDC 11315. Summary Offences Act 1981, s 21(1)(e). The maximumpenalty is three months' imprisonment or a $2,000 fine: s 21(3).2 Matches v Police [2019] NZHC 3029.3 Criminal Procedure Act 2011, s 237(1).4 Mr Matches' appeal was filed in the High Court in error.[5] A closed-circuit television (CCTV) camera recorded some of the interaction.[6] At trial, Mr Matches denied stopping Judge McHardy and said that, when heyelled at him, he was criticising the Judge and protesting a decision made by him as asitting Judge on an earlier occasion, but he had no intent to frighten him. Judge Rollo,having heard evidence from Judge McHardy and Mr Matches and having reviewedthe CCTV footage, was satisfied that the charge was proved beyond reasonable doubt.[7] Mr Matches was also charged with assaulting Judge Druce following anincident which took place on 1 March 2018. Judge Rollo acquitted Mr Matches ofthat charge.[8] Mr Matches appealed his conviction to the High Court. He disputed theJudge's finding that he had "the necessary mens rea", claimed Judge Rollo hadimproperly ignored his defence of free speech, and had found him guilty on the basisof irrelevant and speculative factors. He also made a number of allegations thatthe Judge had acted improperly in his conduct of the trial. His appeal was dismissed.Proposed appeal[9] Mr Matches claims that the District and High Courts erred in their assessmentof the evidence. He contends that Judge Rollo was "at best ambivalent" as to whetherthe necessary mens rea in the charge was present and therefore the legal threshold fora criminal conviction was not met. He says that Judge Rollo's finding was against theweight of the evidence and that Judge Rollo's own comments contradicted his findingthat Mr Matches deliberately tried to frighten the Judge. Mr Matches submits thatthese errors led to a miscarriage of justice and there should be a second appeal.5Decision[10] The Court must not give leave for a second appeal unless satisfied the appealinvolves a matter of general or public importance or a miscarriage of justice may have5 The application for leave indicates that Mr Matches also seeks to appeal his sentence. However,the High Court appeal was against conviction only and the application does not otherwise indicatethat Mr Matches seeks to appeal the sentence of 45 hours' community work imposed byJudge Rollo on 25 March 2019 (Police v Matches [2019] NZDC 5375).occurred.6 We are not persuaded the proposed appeal in this case raises a question ofgeneral or public importance capable of serious argument.[11] A miscarriage of justice is any error, irregularity, or occurrence in or in relationto or affecting the trial which has created a real risk that the outcome of the trial wasaffected or has resulted in an unfair trial or a trial that was a nullity.7 Not every erroror irregularity causes a miscarriage of justice.8 A real risk that the outcome wasaffected exists when there is "a reasonable possibility that a not guilty (or a morefavourable) verdict might have been delivered if nothing had gone wrong".9[12] Judge Rollo undertook a careful analysis of the evidence and viewed the CCTVfootage twice. He noted it was entirely consistent with much of Judge McHardy'saccount.10 He canvassed the evidence given by Mr Matches, who had agreed he wasanimated but denied being aggressive or threatening, or having any intention tofrighten Judge McHardy.11[13] Judge Rollo was satisfied Mr Matches deliberately stopped Judge McHardy bybriefly blocking the Judge's progress up Federal Street by his sudden, closepositioning of his face and body directly in front of the Judge.12 He noted Mr Matchesagreed that he said, "Do you know who I am?" to Judge McHardy, and that he wasagitated during their conversation.13 Judge Rollo acknowledged Mr Matches'evidence that he had no intention to frighten Judge McHardy but was satisfied hisdeliberate actions towards Judge McHardy showed a clear intent to frighten him.14He referred to Mr Matches' strong physical presence and his assertive nature.15He accepted Judge McHardy's account of the incident as accurate and reliable,16 andthat his description of how Mr Matches' behaviour made him feel, while not an6 Criminal Procedure Act, s 237(2).7 Section 232(4).8 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30].9 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].10 Police v Matches, above n 1, at [57].11 At [66].12 At [86].13 At [78].14 At [91].15 At [93].16 At [94].element of the offence, could be an indicator in part of Mr Matches' intent.17The Judge concluded:[101] I also note that while Mr Matches said his intention was to use theopportunity to speak to Judge McHardy about the domestic violence case,Judge McHardy in his evidence, did not refer to any discussion concerning theprotection order hearing or decision. Instead, Mr Matches began to berate andabuse Judge McHardy. His reference to "they" are coming to the Judge'saddress, loudly proclaimed by Mr Matches, I find, was clearly intended tointimidate and frighten Judge McHardy. The volume of his voice, initially invery close proximity to Judge McHardy, and his abusive and insulting words,I further find, were all consistent with a clear intention to frighten the olderand decidedly less robust Judge.[14] Judge Rollo was satisfied beyond reasonable doubt that Mr Matches intendedto frighten Judge McHardy in the sense of making him anxious by confronting himphysically and verbally in the way he did. He therefore rejected Mr Matches'contention that he was merely exercising his right to protest against a judicial officer'sdecisions. For these reasons, the Judge found the charge proved beyond reasonabledoubt.[15] In the High Court, Gordon J considered whether Judge Rollo had erred in hisassessment of the evidence, addressing Mr Matches' contention that he lacked thenecessary intent, and whether the Judge had relied on irrelevant and speculativefactors. She noted that whether Mr Matches knew his conduct was likely to causeJudge McHardy to be frightened was a matter of inference to be drawn fromMr Matches' conduct. She referred to a number of aspects of the evidence from whichthat could be inferred.18 Gordon J was satisfied Judge Rollo had not consideredirrelevant factors and dismissed the appeal.[16] The grounds on which Mr Matches seeks leave for a second appeal weretherefore before Gordon J in the High Court at the first appeal.[17] We do not consider that a miscarriage of justice has occurred or may occur ifleave for a second appeal is not granted. No arguable error of law has been identifiedby Mr Matches. The evidence was carefully assessed in both the District Court and17 At [100].18 Matches v Police, above n 2, at [39].the High Court. All the concerns Mr Matches seeks to raise in relation to theDistrict Court decision were raised by him in the High Court, and addressed carefullyand in considerable detail by the High Court Judge. Mr Matches has not identifiedany basis on which the assessment of the facts by the Courts below, or the applicationof the law to the facts, might be interfered with by this Court. Mr Matches' argumentshave insufficient prospects of success to justify granting leave for a second appeal.Result[18] The application for an extension of time to file the application for leave toappeal is granted.[19] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent.