BUTLER v POLICE [2022] NZCA 445

BUTLER v POLICE [2022] NZCA 445 [20 September 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA238/2022[2022] NZCA 445BETWEEN JESSE WAIARIKI TEMANAVA BUTLERAppellantAND NEW ZEALAND POLICERespondentCourt: Gilbert, Mallon and Wylie JJCounsel: Appellant in PersonT R Simpson for RespondentJudgment:(On the papers)20 September 2022 at 9.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] The applicant, Jesse Butler, was convicted of possessing an offensive weapon,1assault2 and intentional damage3 following a judge alone trial in the District Court.4His appeal against conviction to the High Court was dismissed.5 He now seeks leave1 Crimes Act 1961, s 202A(4)(b).2 Section 196.3 Summary Offences Act 1981, s 11(1)(a).4 Police v Butler [2020] NZDC 23059 [District Court judgment].5 Butler v Police [2021] NZHC 3385 [High Court judgment].to bring a second appeal. An extension of time to bring his leave application haspreviously been granted by Collins J in a minute dated 23 June 2022.Background[2] The charges on which Mr Butler was convicted related to a dispute with aneighbour on 2 October 2018.[3] In convicting Mr Butler of assault, the District Court Judge found thatMr Butler had thrown a rock at his neighbour that left a mark on his leg.6 Mr Butlerdid not dispute that he had done so but claimed self-defence or defence of property.7The Judge rejected this because she regarded his actions as going far beyond what wasreasonable in the circumstances.8[4] In convicting Mr Butler of possession of an offensive weapon, she acceptedthe neighbour's evidence that Mr Butler rushed at the neighbour with a knife in hishand, indicating an intention to threaten violence.9 She rejected Mr Butler's denialthat he had a knife. She did so because she accepted the neighbour's evidence thatMr Butler had lost his temper far earlier than Mr Butler had said in his evidence.10[5] In convicting Mr Butler of intentional damage, she noted that Mr Butleraccepted that he had lost his temper at this point and had damaged the neighbour'sfence with a hoe.11[6] The Judge dismissed a charge of trespass because the evidence did not establishthat Mr Butler had gone onto the neighbour's property.12[7] On appeal to the High Court, Mr Butler contended that the District Court trialhad been unfair because of the delay to trial, and because of the Judge's behaviourincluding her refusal to allow a cross-claim and her interventions in6 District Court trial, above n 4, at [7].7 At [5].8 At [21].9 At [22].10 At [23].11 At [24].12 At [25].cross-examination. The High Court Judge rejected each of these matters and foundthat the District Court Judge was entitled to reach the conclusions that she did.13Assessment[8] Mr Butler's application for leave to bring a second appeal and his submissionsin support of that application do not engage in any way with the evidential findingsmade by the District Court Judge. His principal complaint appears to be that"the criminal procedure was malicious" and has breached a range of provisionsincluding the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.He raises matters prior to his trial, during the District Court trial and the appeal, andsubsequently. He says the lower courts and the Crown have "effectively extinguished[his] identity and citizenship" because they have not used his legal name(Jesse Waiariki Temanava Butler) and have thereby made his passport, driver'slicence, university degrees and identity a "fraud".[9] As to matters prior to his trial, he says that following his arrest, he lost hisAuckland residence and entered the emergency housing programme. Because ofthe way this was managed, he was living in a "violent sub-world" for 21 months andthis interfered with the preparation of his defence. Mr Butler's concerns aboutthe emergency housing programme, however, do not provide a relevant defence tothe criminal charges. Any proposed evidence about this was irrelevant and thereforenot wrongly dismissed by the District Court (if it was dismissed as he alleges).[10] The High Court Judge accepted the delay to trial would have been frustratingand stressful for Mr Butler but was not satisfied that the delay involved anyprosecutorial misconduct or prejudice to the fairness of his trial.14 The issues at trialwere confined — on two of the charges there was no dispute about what had happened(a rock was thrown and the fence was damaged), on one of the charges theDistrict Court Judge accepted the neighbour's version of events (whether Mr Butlerhad a knife) as she was entitled to do, and found the remaining charge not proven.13 High Court judgment, above n 5, at [25], [29], [33] and [39].14 High Court judgment, above n 5, at [22].The High Court Judge also found that some of the delay was caused by a legal aidapplication, counsel withdrawing and Mr Butler failing to appear on one occasion.15[11] As to matters during the trial, Mr Butler repeats the concerns that he made onhis High Court appeal about inequality of treatment by the Judge. He says the Judgeallowed the prosecution to ask "anything they wanted" but limited the questions hewas permitted to ask and disallowed any questions of the neighbour about his mentalillness. The High Court Judge reviewed the transcript of the evidence and rejectedthese submissions.16 He noted that a defended hearing undertaken by aself-represented defendant is a difficult process and the District Court Judgeintervened to explain rules of evidence and procedure and to ensure Mr Butlerobserved the Evidence Act 2006 requirements.17[12] As to matters post trial, Mr Butler says he continues to be subject to the samepre-trial discrimination in housing, medical services and prejudicial treatment, that heis physically weakened from living homeless and that he has no identity to rely on.However, while Mr Butler may see his current situation as linked to the criminalcharges, they do not provide a defence to them in law.[13] Leave to bring a second appeal cannot be granted unless we are satisfied thatthe appeal involves a matter of general or public importance, or a miscarriage of justicemay have occurred or may occur unless the appeal is heard.18 The test is a high one.19We are not satisfied this test has been met. There is settled law on s 25 of the NewZealand Bill of Rights Act concerning the minimum standards of criminal procedureincluding delay to trial.20 Mr Butler has not pointed to anything that suggests amiscarriage of justice occurred in relation to his convictions.Result[14] The application for leave to bring a second appeal is declined.15 At [22].16 At [28].17 At [28] and [36].18 Criminal Procedure Act 2011, s 237(2).19 McAlistair v R [2014] NZCA 175, [2014] 2 NZLR 764.20 See for example Martin v Tauranga District Court [1995] 2 NZLR 419 (CA); and R v Williams[2009] NZSC 41, [2009] 2 NZLR 750.Solicitors:Crown Law Office, Wellington for Respondent