BUTLER v N Z POLICE [2016] NZCA 27

BUTLER v N Z POLICE [2016] NZCA 27 [24 February 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA640/2015[2016] NZCA 27BETWEEN JESSE WAIARIKI TEMANAUABUTLERApplicanttAND NEW ZEALAND POLICERespondentHearing: 9 February 2016Court: Miller, Fogarty and Toogood JJCounsel: Applicant in personA Ewing for RespondentJudgment: 24 February 2016 at 4.00 pmJUDGMENT OF THE COURTA The application for leave to adduce fresh evidence is declined.B The application for leave to appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] This is an application for leave to bring a second appeal against Mr Butler'sconvictions on charges of common assault and threatening to kill.11 Under section 9 of the Summary Offences Act 1981 and section 306 of the Crimes Act 1961 respectively.[2] The charges arose when the complainant, a security officer at MasseyUniversity's Albany campus, tried to serve a trespass notice on Mr Butler. It wassaid that Mr Butler attempted to punch the complainant, spat on the complainant'sface and threatened to kill the complainant. In the District Court, Judge Pippa Sinclair found the charges proved after hearing from both parties and the arresting officers, and in a careful judgment Moore J dismissed Mr Butler'sappeal against conviction and sentence in the High Court.2[3] As we explained to Mr Butler, a second appeal does not lie to this Court as of right. We must be satisfied that the appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.3 The threshold is high.4 In particular, not every error at trial will amount to a miscarriage.5 The Court is slow to grant leave where success for the appellant would require that we reverse concurrent findings of fact below.[4] Mr Butler's first complaint was that he was forced to represent himself at thedefended hearing in the District Court, contrary to his wishes. He said he was refused legal aid for political reasons. This complaint might justify leave had it had been made out on the facts, but it was not. Judge Sinclair recorded that Mr Butlerchose to represent himself, making it "very clear" that that was his preference. Onappeal Moore J reviewed the evidence, noting that Mr Butler did have representation but counsel withdrew with his approval and he then elected to represent himself. Further, he does not appear to have been disadvantaged. With the assistance of the trial Judge his case was clearly explained. On those facts, no question arises of abreach of Mr Butler's rights.6[5] Mr Butler next complained that he was not given his rights immediately upon arrest, or at all. The police accepted that he was given his rights only after he had been arrested and was on his way to the police station. The explanation given was that Mr Butler was so agitated that the police were unable to read him his rights at2 New Zealand Police v Butler DC North Shore CRI-2014-044-669, 21 January 2015 and Butler v New Zealand Police [2015] NZHC 2577.3 Sections 237(2) and s 253(3) of the Criminal Procedure Act 2011.4 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.5 At [38].6 Mount v R [2015] NZCA 489 at [39]–[44].the time, but they did so as soon as he calmed down sufficiently. As Moore J found, the delay was reasonable. Mr Butler complains before us that his evidence, whichwas "compelling", was ignored. He says he was never given his rights. Nothing inthe record suggests that these submissions are correct, nor is there any reason to believe that Mr Butler has suffered any prejudice.[6] Mr Butler also complains, as he did before Moore J, that his appeal ought to have been joined with a civil proceeding he brought against the police, unsuccessfully.7 This contention is wrong in law — the civil/criminal and trial/appellate jurisdictions are quite separate — and asks us to assume that he has suffered some prejudice that would have been avoided had they been heard together.[7] In reaching this decision we have considered but not accepted as admissible a memorandum dated 18 January 2016, in which Mr Butler sought to adduce fresh unsworn evidence on appeal. Mr Butler maintains that this evidence reinforces hisclaim of a pattern of police misconduct. We accept Ms Ewing's submission that theallegations made in the memorandum cannot provide a basis for revisiting the unrelated conclusions reached in the Courts below.[8] In his submissions Mr Butler raised various other matters. He contended, forexample, that his is "a clear case of extreme racism and sustained lawlessness" andfurther, that by defending the civil proceeding the Attorney-General intervened in his case for political reasons. Nothing in the record points to any support for these remarkable allegations.[9] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent7 Butler v Massey University Albany [2015] NZHC 2287.