HAPI v POLICE [2023] NZHC 742

HAPI v POLICE [2023] NZHC 742 [4 April 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2022-463-162[2023] NZHC 742BETWEEN JORDAN NGA POTIKI HAPIAppellantAND NEW ZEALAND POLICERespondentHearing: 4 April 2023Appearances: Appellant in personJ L Manera for RespondentJudgment: 4 April 2023JUDGMENT OF BREWER JThis judgment was delivered by me on 4 April 2023 at 3.30 pmRegistrar/Deputy RegistrarSolicitors:Pollett Legal (Tauranga) for RespondentIntroduction[1] Mr Hapi appeals his conviction on a charge of wilful damage.[2] There is some procedural complexity which I will describe.[3] The charge of wilful damage arose from an incident which occurred on5 August 2020 during which Mr Hapi kicked out a window in a police car.[4] Mr Hapi has at all times represented himself.[5] The case was first set down for a defended hearing on 2 June 2021. Mr Hapifailed to appear and a warrant was issued for his arrest. Mr Hapi made a voluntaryappearance on 4 June 2021, at which time the arrest warrant was withdrawn and thetrial rescheduled for 10 June 2021.[6] Mr Hapi did not appear on 10 June 2021 and Judge IDR Cameron proceededto hear the evidence in his absence. The Judge entered a conviction.1[7] Subsequently, Mr Hapi applied for a rehearing and this was granted. Therehearing proceeded on 21 November 2022, again before Judge Cameron. There weretwo police witnesses. One was cross-examined by Mr Hapi and the other was not.Mr Hapi elected not to give or call evidence. He was again convicted.2Factual background[8] The evidence of the two police officers was that on the evening of 5 August2020 they were on duty in uniform in a marked patrol car. They saw a vehicle do anunexpected three-point turn in front of them so they followed the vehicle and stoppedit in order to check the details of the driver.[9] Mr Hapi was the driver of the vehicle and his brother was the passenger.1 Police v Hapi [2021] NZDC 11573.2 Police v Hapi [2022] NZDC 24926.[10] Mr Hapi refused to give his identification details. His brother was verballyaggressive and was encouraging Mr Hapi not to show his driver's licence or identifyhimself. The police officers warned Mr Hapi that if he did not provide his details theywould arrest him and for that purpose would break the side window of his car so theycould unlock the door. Mr Hapi was still uncooperative and so the police broke thewindow, opened the door and arrested Mr Hapi. Mr Hapi did not resist. However, hisbrother was being aggressive and confrontational.[11] The two police officers handcuffed Mr Hapi and put him in the back of thepolice vehicle.[12] The confrontation between the brother and one of the police officers got to thepoint where the male police officer used his taser, but to no effect. The female policeofficer used pepper spray and this subdued the brother, who was also arrested.[13] While this confrontation was in progress the officers heard the sound ofbreaking glass and, on turning to the police car, found that Mr Hapi had apparentlykicked out the left rear window of the vehicle. Mr Hapi was given his rights under theNew Zealand Bill of Rights Act and was asked why he had broken the window. Hisanswer was, "because you tackled my brother".[14] Mr Hapi's cross-examination of the female police officer was discursive anddid not helpfully address the elements of the offence.The appeal[15] Written submissions for Mr Hapi were filed on 13 March 2023. Some of thesubmissions relate to the trial process:2. Firstly, I allege that [Constable Andrew] committed perjury whileunder oath and on the stand, giving her testimony, surrounding theevents that transpired on the 8th August 2021. Just to note I amclaiming that the so called wilful damage was due to the concern andlawful defence surrounding the physical assault of my brother JacobHapi by [Constable Prout] while [Constable Andrew] help tophysically subdue Jacob.3. At this court may find in evidence present and to be requested,[Constable Andrew's] testimony and her original statement areinconsistent and in conflict with my Affidavit. This is I allege to coverup the Police conduct abuse of power leading to a physical arrestphysically assaulting me and my brother Jacob Hapi.4. I allege that while [Constable Andrew] "under-oath" was giving herversion of events she appeared to have been looking at two officerssitting directly behind me and my representative, believing that thesaid officers were signalling in code, and using facial expressions to[Constable Andrew] and guiding her in her testimony, making her (i)an incompetent witness; (ii) interfering with the testimony of thesworn officer leading to speculate that the officer in question waseither lying or could not remember the account of events that lead tomy arrest and charges.5. I allege that [Constable Prout] and [Constable Andrew] purposelypulled me and my brother who witnessed the events that transpiredthat night and who is willing to testify the same.[16] The rest of the submissions are a mixture of some of the theories that are onlytoo frequently raised in cases such as this. For example:6. I further allege that what had transpired on the night was a breach ofmy common law rights, bill of rights, privacy rights and customaryrights a choice I made clear to [Constable Prout] and [ConstableAndrew] as seeing that I was on my whenua protected under and bythe Crown protectorate.9. By discovery and being a well establish fact that and by operation oflaw a Trust (also known as either a Resulting Trust resulting from thecharges laid by the Police prosecutor) or otherwise a ConstructiveTrust for which both types of trusts are implied) was created as a resultagain, from an application made by the Papamoa police through thePolice prosecutor to bring about this Trust in order to leverage aoriginal c'estui que vie trust.12. However, the Judge (Judge Cameron) acting as executor of this Trust,for which I believed coerced me into accepting that the derivative wasme, and by receiving various mail by the registrar of the court, addingthe word "Mr" the court coerced me into believing that I held a officialposition in and under that resulting or otherwise constructive trust orotherwise c'estui que vie trust.[17] Mr Hapi was assisted at the appeal before me by a McKenzie Friend whoinitially refused to give other than his first name. He eventually gave his surname as"Webb" when I made it clear that he could not be a McKenzie Friend withoutidentifying himself.[18] Thereafter, it became very clear that the submissions Mr Hapi was giving wereMr Webb's submissions and not his own. Mr Hapi accepted this was so and I told himI would take the written submissions as having been read.[19] I asked Mr Hapi whether he had any submissions of his own to make as to whythe Judge was wrong to find that Mr Hapi had intentionally damaged the police vehicleby kicking out the window. I allowed Mr Hapi to leave the courtroom with hisMcKenzie Friend to discuss any further submissions. Unfortunately, upon their returnafter some 10 minutes, Mr Hapi read notes that had clearly been provided for him byMr Webb.[20] I explained to Mr Hapi that this was his opportunity to simply tell me wherethe Judge had gone wrong. His response was:The only reason I done that was because of my brother. I thought he was goingto be shot. My first option was to kick out the window and get to him.[21] Mr Hapi told me that he wants a retrial before a jury.Decision[22] My task3 is to consider whether Judge Cameron erred in his assessment of theevidence to such an extent that a miscarriage of justice has occurred; or whether forany other reason a miscarriage of justice has occurred. Otherwise, I must dismiss theappeal.[23] "Miscarriage of justice" is defined as:4 any error, irregularity, or occurrence in or in relation to or affecting the trialthat—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.3 Criminal Procedure Act 2011, s 232.4 Section 232(4).[24] The evidence against Mr Hapi has been called twice before Judge Cameron.On the second occasion, Mr Hapi had the opportunity to cross-examine the two policeofficers involved and to give evidence himself.[25] It is clear that the Judge was entitled to enter the conviction. The evidence ofthe police officers was uncontradicted and to the effect that while lawfully detainedMr Hapi intentionally damaged the police vehicle.[26] Judge Cameron was alive to Mr Hapi's position that he kicked out the windowbecause he was concerned for his brother. However, the Judge found there was noevidential foundation that Mr Hapi's actions were in defence of his brother, and in anyevent that was not relied upon by Mr Hapi at his trial:[6] The defendant elected not to give evidence or to call any evidence.Instead, he simply advised the Court that he would be appealing theanticipated decision. He also elected not to question Constable Prout at all.By contrast, he did cross-examine Constable Andrew for a considerableperiod of time, mainly with questions that had no direct relevance to the issuesin this trial. Towards the end of his questioning of Constable Andrew he askedher whether she had thought "I was smashing my window out of concern forthe safety of my brother?" This question from the defendant points to thedefence being not that the defendant did not deliberately smash the window,but that he did so because of the police actions in relation to his brother, Jacob.This is also consistent with Constable Prout's notebook entry of thedefendant's explanation for smashing the window, namely that it was becauseof police actions against his brother.[7] Having heard the evidence from the constables, I conclude that bothConstable Andrew and Constable Prout acted lawfully and without excessiveforce in dealing with the defendant's brother and in dealing with the defendant.Indeed, the defendant in his questioning of Constable Andrew did not suggestotherwise.[8] I further find that the defendant did damage the window concerned bykicking out the window from inside the patrol car, which is consistent with theevidence that the majority of the glass was found on the ground outside thevehicle and the fact that the defendant had been handcuffed with his handsbehind his back. I accept the evidence of both Constable Andrew andConstable Prout as to the incident and I have no doubt that the defendantdeliberately smashed the patrol car window. Indeed, the defendant himselfappeared to accept this. Even if the defendant smashed the window out offrustration with the police handling of his brother, Jacob, that is no defence tothe charge. For completeness, I record that there is no evidential foundationthat the defendant's actions were in defence of his brother and, notsurprisingly, self-defence is not relied on.[27] The Judge was entitled to reach these conclusions.[28] I acknowledge that Mr Hapi is self-represented and that had he been legallyrepresented he might well have been able to be more effective in his defence than hewas. But that does not go to a miscarriage of justice in these circumstances.[29] There is no evidential foundation for the appeal grounds I quote at [15].[30] The appeal against conviction is dismissed.[31] The notice of appeal could be construed as encompassing an appeal againstsentence. However, that was not advanced by Mr Hapi, and in any event the onlypenalty imposed on him, other than the entry of a conviction, was a fine of $300.Mr Hapi was also directed to pay reparation for the broken window in the sum of $350.There could be no argument that this was manifestly excessive.[32] The appeal against sentence is dismissed.________________________________Brewer J