BUTLER v NORTH SHORE POLICE [2016] NZCA 150

DRAFT – 20 April 2015 at 9.32 amBUTLER v NORTH SHORE POLICE [2016] NZCA 150 [22 April 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA657/2015[2016] NZCA 150BETWEEN JESSE WAIARIKI TAMANAVABUTLERApplicantAND NORTH SHORE POLICERespondentHearing: 18 April 2016Court: Harrison, Wild and Kós JJCounsel: Applicant in PersonK Laurenson for RespondentJudgment: 22 April 2016 at 10 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is declined.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)[1] The applicant, Jesse Butler, applies for leave to appeal out of time1 against the High Court's dismissal of his claim against the police for torture and misfeasance in a public office.21 Court of Appeal (Civil) Rules 2005, r 29A.2 Butler v Massey University Albany [2015] NZHC 2287.Background[2] Mr Butler originally brought his proceeding against Massey University Albany and the North Shore Police. He does not appeal against the High Court'sdismissal of his claim against the University because the proceeding was never served.[3] Mr Butler's claim against the police was based on events which occurred on 17 February 2014. Callum Blair, a security officer employed by Massey University, attempted to serve a trespass notice on Mr Butler. An altercation followed. When two police officers arrived Mr Blair was holding Mr Butler who was shouting abuse at Mr Blair.[4] The police officers arrested Mr Butler on a charge of assault. With the benefit of hearing evidence from the relevant witnesses, Asher J found that when the police arrived Mr Butler was very angry and abusive.3 The arresting sergeant described Mr Butler's continuous abuse as the worst he had experienced in 10 yearsof police service. While the officers advised Mr Butler of their reason for his arrest, Mr Butler's abuse was such that the officer was unable to advise him of his rights.In due course Mr Butler was formally charged with assault, released on bail and later appeared in court. He was convicted of assault after a trial in the District Court.[5] Asher J found that the police did not exercise any unreasonable force against Mr Butler; and that the officers processed and released him as soon as possible.4Also, the Judge found, the officers treated Mr Butler with humanity and respect. There could be no suggestion that their actions mounted to torture or cruel treatment. He also dismissed Mr Butler's claim of misfeasance in a public office on its merits.He found that, even though a police officer might generously be called a public officer, there was no evidence to support any of the other three elements of the tort.53 At [10].4 At [18].5 At [23]–[24].Decision[6] The principles governing determination of an application for leave to appeal out of time are well settled.6 The interests of justice are the overriding consideration. Within that inquiry, relevant factors include the length of the delay and its reasons;the parties' conduct; the extent of any prejudice caused by the delay; the respective merits of the appeal; and whether any issues of public importance arise.7[7] Mr Butler's notice of appeal was filed 19 days outside the prescribed time.The police accept that no material prejudice results. And we accept that the delay was caused by an honest mistake about the correct court.[8] The merits are the decisive factor. Mr Butler has presented his written submissions clearly and comprehensively. His oral argument was presented in the same way. However, we are satisfied that the proposed grounds of Mr Butler'sappeal cannot possibly succeed.[9] Mr Butler appeals on the grounds that Asher J did not take into account Mr Butler's brief of evidence when making his findings, thereby breaching Mr Butler's right to natural justice; that the Judge's conclusions are unsupported bythe evidence; that considerable doubt arose in the course of cross-examination of the police officers as to whether Mr Butler was lawfully arrested; that the Judge'sfinding that the police officers were required to use force against Mr Butler is contrary to the evidence; that the Judge has treated the police generously; that the Judge has contradicted himself in one material paragraph;8 that the Attorney-General wrongfully interfered with the decision by Woolford J in the criminal proceeding; that the Legal Services Board refused to grant Mr Butler legal aid because Mr Blair was previously a police officer; and, finally, that Asher J wrongly concluded Mr Butler was lying and the police officers were truthful.[10] We have carefully considered Mr Butler's grounds. We are not satisfied thatany of them is arguable. Asher J, who had the real benefit of seeing and hearing the6 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].7 Wardell v ASB Bank Ltd [2015] NZCA 344 at [12].8 Butler v Massey University Albany, above n 1, at [26].witnesses, found that Mr Butler's claim failed "by a very wide margin".9 Our own evaluation of the evidence against the relevant legal principles confirms that assessment. In our judgment there is no arguable basis for a contrary view.Result[11] The application for an extension of time to appeal is declined.[12] There is no order as to costs.Solicitors:Crown Law Office, Wellington for Respondent9 At [25].