HAPI v NEW ZEALAND POLICE [2023] NZCA 424

HAPI v NEW ZEALAND POLICE [2023] NZCA 424 [6 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA228/2023[2023] NZCA 424BETWEEN JORDAN NGA-POTIKIRICHMOND HAPIApplicantAND NEW ZEALAND POLICERespondentCourt: Wylie, Ellis and van Bohemen JJCounsel: Applicant in personB J Thompson and Z Zhang for RespondentJudgment:(On the papers)6 September 2023 at 10 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal against the rehearing decisionof the District Court — [2022] NZDC 24926 — is declined.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The applicant, Jordan Hapi, seeks leave to bring a second appeal against aconviction entered against him for intentionally damaging the window of a police car,contrary to s 11(1)(a) of the Summary Offences Act 1981.[2] On 10 June 2021 Mr Hapi was found guilty of the charge by Judge Cameronin the District Court at Tauranga, notwithstanding that Mr Hapi had failed to appear atthe hearing.1 Mr Hapi was ordered to pay reparation of $350.75, being the costs ofrepairs to the police vehicle.[3] Mr Hapi was granted a rehearing. On this occasion he defended the charge.He was again found guilty by Judge Cameron. Mr Hapi was convicted, fined $300and ordered to pay reparation of $350.75.2[4] Mr Hapi then filed an appeal with the High Court. The appeal was heard byBrewer J. It was dismissed.3[5] Mr Hapi now seeks leave to bring a second appeal against the rehearingdecision pursuant to s 237(1) of the Criminal Procedure Act 2011. The application forleave to bring a second appeal is opposed by the Crown.Factual background[6] Judge Cameron recounted the factual background to Mr Hapi's offending inhis sentencing notes following the rehearing decision. We gratefully adopt hissummary:[2] The allegation is that on 5 August 2020 while under arrest and sittingin the rear of a police patrol car the defendant deliberately smashed the leftrear window of that vehicle. Constables Andrew and Prout gave evidence.Their common evidence was that they were on duty in a patrol car on the nightof 5 August 2020. They were called to investigate a separate incident inMaketu in the Tauranga region and at about 9 pm that night they observed ablack Honda SUV travelling towards them, but then doing a u-turn, whichaction they regarded as suspicious. The vehicle was stopped by police, withthe patrol car parking behind the SUV and lighting the scene with itsheadlights. They went to the driver's door, which had the window open butonly to the extent of some five to 10 centimetres. The driver was thedefendant, Jordan Hapi. He was asked to provide his driver's details,including his licence, but refused. He was warned that it was an offence if herefused. He remained non-compliant.[3] He was then arrested and was told to get out of the vehicle. He didnot do so and was warned that police would smash the driver's window to gain1 Police v Hapi [2021] NZDC 11573 [the first hearing decision].2 Police v Hapi [2022] NZDC 24926 [the rehearing decision].3 Hapi v Police [2023] NZHC 742.entry if he did not get out. He remained [non-compliant] so Constable Proutsmashed the driver's window and extricated the defendant. Prior to hisremoval from the vehicle, the evidence was that the defendant's brother,Jacob, who was the other occupant of the vehicle, could be heard by policetelling the defendant not to comply with the police directions stating "policework for us" or something similar.[4] After the defendant was removed from the vehicle he was handcuffedwith his hands behind his back and placed in the left rear passenger seat of thepatrol car. The evidence was that the defendant's brother, Jacob, becameagitated and got out of the vehicle and aggressively confrontedConstable Prout about what had occurred. The constables' evidence was thatJacob and Constable Prout then engaged in a tussle which culminated inConstable Prout deploying his taser gun, but it was to no effect as Jacob waswearing baggy clothing. The evidence was that Jacob remained aggressive soConstable Andrew pepper sprayed him, which subdued him. He was alsoarrested.[5] Constable Andrew's evidence was that when dealing with Jacob sheheard "a massive shatter of glass". This transpired to be the smashing of theleft rear passenger window of the patrol vehicle next to where the defendanthad been placed. The evidence was that the defendant was the sole occupantof the vehicle at the time. After the defendant had been given his Bill of Rightsby Constable Prout, the contemporaneous notes of the constable record thathe asked the defendant why he had smashed the window of the patrol car. Theanswer the defendant gave was recorded as "because you tackled my brother."The Court decisionsThe first hearing decision[7] As noted, Mr Hapi did not appear at the first hearing. The Judge neverthelessmade an order that the trial should proceed in his absence.4 Constables Andrew andProut gave evidence. The Judge was satisfied that "[i]n all of the circumstances, thepolice have proved beyond reasonable doubt that it was the defendant whointentionally damaged the police window".5The rehearing decision[8] As noted, Mr Hapi was granted a rehearing. He represented himself and hewas accompanied by a McKenzie friend. Mr Hapi elected not to call or give evidenceand he advised the Court from the outset that he would be appealing the decision. BothConstables Prout and Andrew gave evidence. Mr Hapi did not question4 Police v Hapi DC Tauranga CRI-2020-070-4502, 10 June 2021.5 The first hearing decision, above n 1, at [7].Constable Prout. He did question Constable Andrew, but as the Judge noted, most ofthe questions had no direct relevance to the issues at trial.6[9] The Judge concluded that the Constables had acted lawfully and withoutexcessive force when dealing with Mr Hapi and his brother.7 The Judge found thatMr Hapi had deliberately damaged the window in the police car by kicking it frominside the vehicle. The Judge noted that even if Mr Hapi had smashed the window outof frustration with the police officers' handling of his brother, this was no defence tothe charge. He recorded that, in any case, there was no evidential foundation for anysuggestion that Mr Hapi's actions were in defence of his brother. He found Mr Hapiguilty of the charge of wilful damage and sentenced him as noted above at [3].The High Court appeal[10] Mr Hapi appealed his conviction to the High Court. He was again assisted bya McKenzie friend. Brewer J noted that the McKenzie friend initially refused to givehis surname. The Judge made it clear that a person could not be a McKenzie friendwithout first identifying himself, at which point the McKenzie friend gave the name"Webb".8 The Judge also recorded that it became very clear that the submissionsMr Hapi was making before him were Mr Webb's submissions, and not his own.[11] The Judge considered whether Judge Cameron erred in his assessment of theevidence to such an extent that there had been a miscarriage of justice, or whether, forany other reason, a miscarriage had occurred. Brewer J was clear in his view thatJudge Cameron was entitled to enter the conviction.9 He noted that the evidence ofthe police officers was uncontradicted and that it was to the effect that while lawfullydetained, Mr Hapi intentionally damaged the police vehicle. Brewer J noted thatJudge Cameron was alive to Mr Hapi's assertion that he kicked out the windowbecause he was concerned for his brother. However Brewer J noted thatJudge Cameron had found that there was no evidential foundation for any assertionthat Mr Hapi's actions were in defence of his brother and that, in any event, that6 Rehearing decision, above n 2, at [6].7 At [7].8 Hapi v Police, above n 3, at [17].9 At [25].defence had not been relied upon by Mr Hapi at trial.10 Brewer J considered thatJudge Cameron was entitled to so conclude.11[12] Brewer J considered that there was no evidential foundation for the appealgrounds raised by Mr Hapi and accordingly, he dismissed the appeal againstconviction. He went on to record that the notice of appeal could perhaps be construedas also encompassing an appeal against sentence. He noted that this issue had not beenadvanced by Mr Hapi, but, for completeness, he commented that there could be nosuggestion that the sentence imposed was manifestly excessive. He dismissed anyappeal against sentence as well.12Submissions[13] Mr Hapi's proposed grounds of appeal are difficult to discern.[14] In his notice of appeal, Mr Hapi argued that his representative — we assumehis McKenzie friend, Mr Webb — was denied the ability to "litigate and mediate on[his] behalf", and that had Mr Webb been able to litigate, this "may have resulted in afair questioning of all witnesses". He asserted that Mr Webb was "coerced by verbalthreats of violence by Brewer J and subject to presumptuous misleadingmisrepresentation known as a 'Mr Webb' knowing full-well that this is a presumptionof law", and, in Mr Hapi's view, an "abuse of power etc." Mr Hapi suggested that aresulting constructive trust was created and that unbeknown to him, he was made atrustee indirectly by Brewer J, without ever signing a deed of trust. He also arguedthat his brother was "traumatised", and the statements made by the police were"fabricated to cover up the handling" of his brother and the "abusive nature" of theactions taken by the police. He argued that the police had manufactured a falsenarrative.[15] Mr Hapi filed an affidavit, dated 9 June 2023. The affidavit does not addressanything of relevance to the proposed appeal. Rather it makes broad allegations offraud and slavery by various public authorities in New Zealand and it refers to "an10 At [26].11 At [27].12 At [31].unconstitutional regime New Zealand Government Property Corporation". There isnothing in the affidavit which could assist Mr Hapi in his proposed appeal.[16] In a further document headed "Notice of Opposition", dated 17 July 2023,Mr Webb, presumably on behalf of Mr Hapi, raises a host of issues. They are difficultto understand. There is reference to a vehicle seizure and "impoundment" notices, tovarious alleged "tort violations", to a notice of police bail, to a driver's license, to acharging document and to a number of statutes, none of which advance the proposedappeal. The document appears to challenge the sovereignty of Parliament and thejurisdiction of the District and High Courts.[17] The respondent's argument are more succinct. It argues that Mr Hapi'sproposed appeal raises no arguable grounds, that it does not involve a matter of generalpublic importance and that there is no risk of any miscarriage of justice.Analysis[18] Mr Hapi's first appeal was to the High Court. Any further appeal will be tothis Court. Pursuant to s 237 of the Criminal Procedure Act, Mr Hapi requires theleave of this Court before he can bring a second appeal against the District Court'srehearing decision. Section 237(2) provides that this Court must not give leave for asecond appeal unless it is satisfied that:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless theappeal is heard.[19] The threshold is high.13[20] The matters which Mr Hapi seeks to raise on appeal, to the extent weunderstand them, do not involve any matter of general or public importance.[21] Mr Hapi wishes to take issue with Brewer J denying his McKenzie friend,Mr Webb, "the ability to litigate and mediate on [his] behalf". There is no merit in13 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.this argument. A McKenzie friend has no entitlement to address the Court.14 Rathera McKenzie friend is there to assist the litigant in person. If Mr Hapi's complaint isthat Mr Webb was denied the opportunity to actively advocate for him at the hearing,that argument simply cannot succeed. In any event, it is clear from his decision thatBrewer J read the written submissions that had been prepared by Mr Webb and heexpressly allowed Mr Hapi the opportunity to discuss his oral submissions withMr Webb during the course of the hearing.15[22] Mr Hapi also notes that his brother pleaded guilty to the charges laid againsthim. The circumstances in which Mr Hapi's brother pleaded can have no bearing onthe case against Mr Hapi and the proceedings against Mr Hapi's brother played no partin the reasoning of either Judge Cameron or Brewer J.[23] The challenges to the sovereignty of Parliament and to the jurisdiction of thecourts in New Zealand cannot succeed.16 Mr Hapi was convicted and sentenced bythe District Court following the application of well-settled legal principles to factswhich were not disputed. We are not satisfied that the proposed appeal raises any issueof general or public importance.[24] Further there is no prospect that justice has miscarried. It is patently clear onthe uncontradicted evidence that Mr Hapi intentionally damaged the police vehiclewhile he was lawfully detained. While Mr Hapi appears to now suggest that he wasacting in defence of his brother, both the District Court and the High Court on appealwere correct to find that there was no evidential foundation for this defence. It wasnot, as a matter of law, available to Mr Hapi and it could not have been a defence tothe charge.[25] The fine imposed and the reparation ordered cannot be said to be manifestlyexcessive and, in any event, Mr Hapi has not sought leave to bring a second appeal in14 R v Hill [2004] 2 NZLR 145 (CA) at [48]; and Faulkner v Trustees of Allotment 5 Parish ofTahawai [2011] NZCA 196, at [2].15 Hapi v Police, above n 3, at [18]–[19].16 Brooker v R [2014] NZCA 436 at [4]; Yates v R [2019] NZCA 155 at [8]–[9]; and Wallace v R[2011] NZSC 10, at [2].relation to the sentence imposed, as required by s 253(1) of the Criminal ProcedureAct.[26] For all of these various reasons, we decline Mr Hapi's application for leave tobring a second appeal against the District Court's rehearing decision.Result[27] The application for leave to bring a second appeal against the rehearingdecision of the District Court — [2022] NZDC 24926 — is declined.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent