BROWN v NEW ZEALAND POLICE [2023] NZHC 3430

BROWN v NEW ZEALAND POLICE [2023] NZHC 3430 [29 November 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2023-463-0048[2023] NZHC 3430BETWEEN JAMES DEAN BROWNAppellantAND NEW ZEALAND POLICERespondentHearing: 30 October 2023Appearances: James Brown, the Appellant in PersonT Taane for the RespondentJudgment: 29 November 2023JUDGMENT OF HARVEY JThis judgment was delivered by me on 29 November 2023 at 4.30 pm.Date: ..(Deputy) RegistrarSolicitors:Pollett Legal, TaurangaAnd to:The AppellantIntroduction[1] James Brown was charged with driving with excess blood alcohol on29 October 2022. On 24 November 2022, his counsel Mr Kay entered a guilty pleaon his behalf. On 30 March 2023, Mr Brown applied to have that plea vacated. JudgeBidois declined to do so on 4 April 2023. Mr Brown was then sentenced on 28 April2023. He now appeals his conviction.[2] Mr Brown is self-represented. From the various documents filed, his groundsfor appeal appear to be:(a) He received inadequate advice regarding his plea and the possibility ofvacating a guilty plea.(b) The District Court failed to consider an application to vacate the guilty pleabefore sentencing and in doing so overruled native right, including HeWhakaputanga o te Rangitira o Nu Tirini and Te Tiriti o Waitangi.(c) The New Zealand Police failed to provide "proof of claim" documentsestablishing its jurisdiction to prosecute Mr Brown, particularly in relation toits authority to operate on his ancestral whenua. In doing so, the New ZealandPolice failed to comply with the Criminal Disclosure Act 2008.(d) The charges have been laid against "James Brown" but Mr Brown is not thatperson, who is fictional, but is instead his true identity is "heemi".[3] On 5 September 2023, Lang J noted there is no basis to vacate guilty plea aftersentence and directed that Mr Brown's application be dealt with as a conviction appeal.Appellate approach[4] Under s 232, the appellate court must allow an appeal against conviction if,relevantly, a miscarriage of justice has occurred for any reason.1 A miscarriage of1 Criminal Procedure Act 2011, s 232(2)(c).justice means any error, irregularity or occurrence in or in relation to or affecting thetrial that has created a real risk that the outcome of the trial was affected or has resultedin an unfair trial that was a nullity.2 This includes a proceeding where an appellanthas pleaded guilty.3[5] The leading case of trial counsel error is Supreme Court's decision inR v Sungsuwan, which stated:4[70] In summary, while the ultimate question is whether justice has miscarried,consideration of whether there was in fact an error or irregularity on the part ofcounsel, and whether there is a real risk it affected the outcome, generally will be anappropriate approach. If the matter could not have affected the outcome any furtherscrutiny of counsel's conduct will be unnecessary. But whatever approach is taken, itmust remain open for an appellate Court to ensure justice where there is real concernfor the safety of a verdict as a result of the conduct of counsel even though, in thecircumstances at the time, that conduct may have met the objectively reasonablestandard of competence.[6] Thus, an appropriate approach is to consider whether there was in fact any erroror irregularity on the part of counsel, and whether there is a real risk it affected theoutcome.5 If the matter could not have affected the outcome any further scrutiny ofcounsel's conduct will be unnecessary.6 Instructions relating to plea are one of three"fundamental decisions" where a trial counsel's failure to properly follow specificinstructions is likely to give rise to a miscarriage of justice.7Discussion[7] Mr Brown did not file any material detailing the basis upon which the trialcounsel's advice as to plea was said to be faulty. He merely stated that he did notunderstand the consequences of a guilty plea. At the hearing Mr Brown informed methat his only submission on this point was that he sought to have the plea vacated andthat the appeal should be granted. When I pointed out to him that the orthodox processwas for his former trial counsel to file an affidavit, Mr Brown indicated that he did notwish to have that matter pursued.8 He continued to assert that, in any event, he was2 Section 232(4).3 Section 232(5).4 R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730.5 At [70].6 At [70].7 Hall v R [2018] 2 NZLR 26 at [65].8 A minute to that effect was issued on 26 October 2023.not the person named in the proceedings, disputing that he was in fact a person called"James Brown" or even "Mr Brown." He then claimed that the woman named on thebirth certificate of "James Brown" was not his mother and that he had always beenknown as "Hemi". I return to the identity point later in this decision.[8] For completeness I turn to consider Judge Bidois' decision not to vacateMr Brown's guilty plea. A plea of guilty may be withdrawn at any time before thedefendant has been sentenced or otherwise dealt with, if the court gives leave. Thecourt must vacate the plea if specific circumstances relating to sentence indicationsoccur, but those are not relevant here. There must be exceptional circumstances andthe onus is on the defendant to establish it is the interests of justice for the plea to bevacated, for example, when the defendant has acted upon a material mistake, there isa clear defence, or there has been a serious defect in proceedings leading to thedefendant entering the plea erroneously or under duress.9[9] As noted, Mr Brown could not point to any deficiencies in his representation.The remaining arguments filed in his application to the District Court dated 30 March2023 are without merit and do not establish that it is in the interests of justice to vacatethe plea. They are summarised by the ground of appeal set out as (c) above.[10] New Zealand Courts are bound to accept the validity of Acts of Parliament.10The Criminal Procedure Act 2011 sets out the process by which charges may be laidagainst a person. The New Zealand Police is entitled, through any Police employee,to lay a charge against a person under s 15 and conduct proceedings against that personunder s 10(1)(a). Police are not required to provide this information under theCriminal Disclosure Act 2008; it is already set out in statute.[11] There is a further document authored by Mr Brown and dated 27 April 2023,following Judge Bidois' decision declining to vacate plea but predating the notice ofappeal. It was filed the day before sentencing. It purports to put forward furthergrounds upon which plea should be vacated. There had been no change incircumstances that might require Judge Bidois to consider a second application to9 Whichman v R [2018] NZCA 519.10 Rangitaawa v Chief Executive of the Department of Corrections [2013] NZCA 2.vacate guilty plea. The application was likely an abuse of process. Out of anabundance of caution, I will deal with any new arguments arising from this document.[12] Mr Brown argued in this document that "the charges laid by the police failedto inform me that I could not let my blood be taken as my blood is tapu under tikanga".Section 72(1)(b) of the Land Transport Act 1998 empowers police to require anevidential blood test be given if a person has undergone an evidential breath test, thetest appears to be positive and the person within 10 minutes of being advised of thematters in s 77(3)(a) elects to undergo a blood test. The summary of facts recordsMr Brown elected to undergo a blood test having returned an evidential breath testresult of 600 micrograms of alcohol per litre of breath. Nothing in s 77(3)(a) requiresPolice to advise him of the matters he claims. Therefore, there is no irregularity thatwould justify the vacating of his guilty plea.[13] He then argued that he "was not offered the opportunity to have a specialistcultural report or a Marae/community panel". Neither of these things is required to beoffered prior to the entry of guilty plea and could not amount to grounds to vacate plea.[14] Finally, Mr Brown raised that "incorrect information on the profile of personalinformation" was entered by the Police. I assume this relates to the identity argumentraised orally by Mr Brown and reflected in the ground of appeal set out at (d).[15] It can be dealt with shortly. It is a "sovereign citizen" type pseudo-legalargument that has no basis or meaning in law.11 No person can avoid legal liabilityby dissociating themselves from their "legal persona".12[16] I pointed out to Mr Brown at the hearing that, despite disputing his identity, hehad nonetheless signed various documents as "James Brown". For example, the baildocuments dated 1 November 2022 he signed as "James Brown"; his "proof of claimnotice: full disclosure required" dated 30 March 2023 as "James Brown"; his "proofof claim notice to vacate plea" dated 27 April 2023 as "James Brown"; his notice of11 See Niwa v Commissioner of Inland Revenue [2019] NZHC 853, [2019] NZAR 1104 and Warahiv Chief Executive of the Department of Corrections [2022] NZCA 105 at [10]–[11].12 At [10]–[11].appeal dated 17 May 2023 as "James Brown"; and his notice of appeal dated16 October 2023 as "Hemi J Brown".[17] I also asked counsel to confirm the evidence by which Mr Brown had beenidentified when he was processed and charged by the Police. Mr Taane in an email tothe registrar dated 22 November 2023 confirmed that Mr Brown had received indisclosure a copy of a photograph of himself that was taken at the time. Followingthat, Mr Brown would then be given the opportunity to file a further submission.[18] Earlier this afternoon, Mr Brown filed a number of documents, none of whichhave any bearing to the issues on appeal. They included Bible verses, a copy of the"Cestui Que Vie Act 1666" and three documents containing pseudo-legal jargon withno legal effect.13[19] I am satisfied that the person in the photograph is the same person who attendedthe appeal hearing on 30 October 2023. I am also satisfied that the question of theidentity of the appellant for the purposes of this appeal are no longer at issue.Moreover, none of the matters raised by Mr Brown address the relevant points on theappeal concerning, what appeared to be at the initial stages at least, a claim regardingtrial counsel error. As foreshadowed, the balance of the submissions made byMr Brown orally do not address the appeal grounds either. In any event, I can findnothing in the written material put forward which demonstrates any error by counselor the Judge nor demonstrates a miscarriage of justice has occurred.[20] For these reasons, and because I detect no error in the learned Judge'sapproach, the appeal must be dismissed.Decision[21] The appeal against conviction is dismissed._____________________________Harvey J13 See generally Niwa v Commissioner of Inland Revenue, above n 11.