BURCHELL v POLICE [2020] NZHC 652

BURCHELL v POLICE [2020] NZHC 652 [26 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-557CRI-2019-404-542[2020] NZHC 652BETWEEN LLEWELLYN BURCHELLAppellantAND NEW ZEALAND POLICERespondentHearing: 25 March 2020(Via telephone)Counsel: Appellant in personB Finn for RespondentJudgment: 26 March 2020JUDGMENT OF WHATA JThis judgment was delivered by me on 26 March 2020 at 4.00 pm.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] Mr Burchell appeals against conviction and sentence for one charge ofblackmail and one charge of theft. It is currently set down for hearing on 4 May 2020.[2] This comes to me under urgency because:(a) Mr Burchell claims Court staff have been refusing to table mattersraised by him with the Court;(b) Mr Burchell says he has not been able to attend Court for previous callovers because probation officers refused to let him attend and orarrested him for breach of his home detention conditions – this hasprejudiced his ability to secure an early fixture;(c) Mr Burchell maintains his home detention sentence was stayed by theDistrict Court;(d) Mr Burchell's fixture has been set down for May, by which time hissentence of home detention will have nearly expired; and(e) Mr Burchell has asked to bring his appeal forward and applies to cancelEM bail ordered by Judge Sharp as soon as possible.[3] I must therefore determine whether it is necessary, in the interests of justice, tobring this matter on for urgent hearing and/or suspend Mr Burchell's home detentionpending the appeal. Given that Covid-19 alert level 4 will apply in respect of anyurgent fixture, only priority matters may be set down for hearing.[4] In addition, because the Covid-19 alert level 3 was operative at the time of thishearing, it was dealt with by way of telephone conference. No objection was raised tothis course. At the conclusion of the hearing, I directed that the appeal be heard on 6April 2020 at 10.00 am, but I declined to suspend the home detention. My reasonsfollow.Background[5] Dealing first with the blackmail, Mr Burchell was charged with threatening todisclose alleged criminal activity of the victim on 15 October 2015. He was given asentencing indication on 10 June 2019 of 6 to 8 months. He then pleaded guilty to theblackmail. He later received a sentence of 6 months' home detention on 26 November2019.[6] Turning to the theft conviction, Mr Burchell was charged with stealing a HarleyDavidson motorbike on 23 May 2017. He also pleaded guilty to this charge, onSeptember 2019.[7] Mr Burchell filed his appeals on 17 December 2019. Mr Burchell's groundsof appeal in relation to the theft charge are summarised as follows:(a) He pleaded guilty to the charge of theft under significant duress – hesays, among other things, a constable threatened to kill him and that hewould tell Mr Burchell's wife he had committed suicide;(b) There was no evidence that the motor bike was owned by anyone – andhis defence was that he thought it was abandoned; and(c) There were many irregularities with the information provided in theCrown's case, such as, dates on statements produced by the Police.[8] Mr Burchell's grounds of appeal on the blackmail charge are summarised asfollows:(a) The trial process was unfair to him, for example, Court staff would notassist Mr Burchell to summon witnesses and Judge Sharp did not allowMr Burchell to summon witnesses because he complained about theway staff had handled his summons documentation;(b) he was only allowed to question the victim, who committed perjury;(c) he was not allowed a fair hearing;(d) he pleaded guilty as he was suffering under stress and he continued tobe abused by the Court, which insisted on protecting a fraudster; and(e) court staff refused to deal with his legal papers.[9] When this matter was first called on 17 January 2020, Mr Burchell sought thesentencing documents and transcripts from his plea and sentencing hearings, so afurther case management conference was set down for 28 February 2020 inanticipation that an appeal hearing could then be fixed.[10] At the first conference, Mr Burchell also claimed that he had been granted astay by the District Court. He also complained about the behaviour of a High Courtregistry staff member. Gault J in his minute dealt at length with those matters. I recordwhat he said here in full for ease of reference:[7] Mr Burchell submitted that Judge Sharp made an order on 3 January2020 staying his sentence of home detention pending appeal, but this had notbeen complied with - in particular Probation had refused to remove hiselectronic monitoring bracelet. He also complains that he is not allowed todeliver paperwork to the Court. He sought an order in this Court.[8] Mr Finn was not aware of a stay order by Judge Sharp. He submittedthat if the District Court Judge had made an order staying execution pendingappeal, it should be complied with and there was no need for this Court tomake a further order. On the other hand, if the District Court Judge had notordered a stay, Mr Burchell should be given an opportunity to be heard inrelation to the grounds for a stay.[9] Mr Finn also submitted that under the Criminal Procedure Act 2011,a sentence of home detention is not suspended pending appeal unless theappeal court expressly directs that the sentence be suspended. This is to becontrasted with other community-based sentences where the sentence ceasesto run on the day on which a notice of appeal or application for leave to appealis filed. Separately, there is the possibility of bail pending appeal.The Court file indicates that Mr Burchell sought a stay in the notice of appealbut was advised by the High Court registry that an application for stay of thesentence needed to be filed in the District Court in the first instance inaccordance with s 54(2) of the Bail Act 2000. Mr Burchell then applied to theDistrict Court on 18 December 2019 for a stay and bail. On 7 January 2020the District Court advised that on 3 January 2020 Judge Shar directed:There is no power to grant Mr Burchell's application. He has appealedthe decision on his conviction and sentence. I can no longer make anyorder in this case. Sentencing is stayed pending appeal in any event.[11] The District Court Judge did not make an order, but recorded that heconsidered that sentencing is stayed pending appeal in any event. But, asMr Finn submitted, a sentence of home detention (as distinct from othercommunity-based sentences) is not automatically stayed under the CriminalProcedure Act. The District Court Judge had no power to stay the sentenceunder the Criminal Procedure Act – that can only be done by this Court as theappeal court.[12] However, the District Court Judge was the correct person to consideran application for bail pending appeal. Section 54 of the Bail Act 2000provides that an appellant subject to a sentence of home detention is bailableat any time before the hearing of the appeal at the discretion of the Judgewhose determination is appealed against. The District Court Judge did notspecifically address bail.[13] Whether Mr Burchell seeks to apply to this Court for a stay or appealagainst his implicit denial of bail, he should be given an opportunity to do so.He is self-represented and was not in a position to make out his grounds atcallover today. If Mr Burchell files and serves any such application, it can beaddressed.[11] Mr Burchell did not appear at the 28 February fixture, so the call was adjournedfor a further week with a direction that, if Mr Burchell does not appear again, orderswill be made in his absence. The matter was called on 6 March 2020. Mr Burchelldid not appear. Katz J was aware, however, of Mr Burchell's persistent claim that hissentence had been stayed and his multiple complaints about High Court staff. TheJudge refers in her minute to that fact that an appeal does not automatically suspend asentence and that Mr Burchell is entitled to apply to have it suspended and has notdone so. The judge set the matter down for hearing on 6 May 2020.Mr Burchell's further complaints[12] Since then, Mr Burchell has made further complaints still about interferenceby probation officials with his ability to attend Court and the behaviour of registrystaff, claiming among other things, that they have refused to table documents with thisCourt. These complaints repeat the claim that his sentence was stayed by Judge Sharp.He also claims that High Court staff did not provide him with a copy of Gault J'sminute and that he was not informed of the call over on 28 February 2020. He saysthat a court staff member "organised to arrest Mr Burchell and keep Mr Burchell injail and locked up to prevent Mr Burchell to deal with this appeal". He also says thatHigh Court staff failed to provide him with transcripts of the hearings at which hepleaded guilty and other related records.[13] Mr Burchell further claims the Police prevented him from making contact withlegal counsel and locked him up without food or medication. He says that one Judgehad him beaten up by security staff in court. He says probation officials instructed thathe was not allowed to go to the High Court on 28 February. After he was released hesaid he was allowed EM bail on a 24-hour curfew. He makes further allegation ofcorruption by probation officials who refused to extend his time to attend Court on 20March 2020.[14] He also complains that Court staff are refusing to take applications over thecounter and deliberately failing to bring his appeal to the Court. He also says he couldnot attend on 6 March 2020 because of probation officials. He also seeks orders toproduce those staff so that his claims of abuse can be put to the Court. As noted above,Mr Burchell requested an urgent hearing to address these claims.Respondent's position[15] Mr Finn for the New Zealand Police was content with the matter being heardon 6 April. He opposed the lifting of the home detention because the time until hearingwas short and the merits of Mr Burchell's appeals were weak. He noted in this regardthat he has reviewed the transcripts of the hearings at which Mr Burchell pleadedguilty. He says they show that Mr Burchell did not make his pleas under duress andthat there is no proper basis now for setting them aside.Assessment[16] Mr Burchell makes various claims about the behaviour of probation officials,the Police, and Court staff for the purpose of his appeal and also in relation to theappeal process. He made similar claims throughout the District Court process. Someof the claims are very serious. For example, claims of malicious behaviour by policeand probation officers, as well as court staff. I return to these claims below. I pausehere, however, to expressly reject Mr Burchell's claim that the High Court staff havemaliciously refused to provide him with information or discharge their duties inrespect of his appeal. That claim is not supported by the record. It is clear, forexample, that Mr Burchell was provided with copies of call-over minutes. He was alsosent all of the transcripts of the hearings at which he pleaded guilty.[17] Turning now to Mr Burchell's applications. While the delay in bringing thismatter on for hearing largely relates to the need to obtain District Court documentationfor the purpose of the appeal, as well as Mr Burchell's failure to attend the call overson 28 February 2020 and 6 March 2020, the hearing should be brought on as soon aspossible given the expiry date of the home detention sentence on 26 May 2020. To mymind, an early fixture is justified to ensure that the appeal is not rendered nugatory bythe delay and given that it bears on Mr Burchell's liberty. I therefore allocate a fixtureon 6 April 2020 at 10.00 am.[18] Mr Burchell was initially happy with this date, but at the end of the hearing MrBurchell complained vociferously that he had not been provided with the transcriptsof the hearing at which he gave his guilty pleas. That is incorrect. The Court's recordsshow they were emailed to him on 19 February 2020. He also complained that he didnot have the transcript of a hearing before another judge wherein he claims to havebeen beaten up at the request of that judge. That claim is evidently outrageous andscandalous. In any event, I refused to delay the hearing to enable that transcript to beproduced. This is because the key transcripts dealing with the guilty pleas have beenprovided to Mr Burchell. I also directed that further copies be provided to him.[19] Suspension, however, is not justified. The power to suspend is contemplatedat s 343 of the Criminal Procedure Act 2011 as follows:343 General effect of appeal on sentenceNo sentence may be suspended just because a person files a notice of appealor notice of an application for leave to appeal under this Part, unless—(a) the appeal court expressly directs that the sentence be suspended; or(b) an enactment provides for the sentence to be suspended in that case[20] No criteria are specified for the grant of suspension, but the policy of the lawis exemplified by the power to grant bail pending an appeal.1 Mr Burchell must satisfythe Court that it is in the interests of justice to do so.2 Also by analogy to the powerto grant bail pending appeal, relevant considerations include:3(a) the apparent strength of the grounds of appeal:(b) the length of the sentence that has been imposed on the appellant;(c) the likely length of time that will pass before the appeal is heard;(d) the personal circumstances of the appellant and the appellant'simmediate family;(e) any other consideration that the court considers relevant.[21] Dealing first with the apparent strength of the grounds of appeal. Mr Burchellpleaded guilty to both charges. As the Court of Appeal said in R v Smail:4[17] When somebody pleads guilty to a crime, it is only in the mostconstrained circumstances that that person may be permitted by a Court tochange their plea.[22] In relation to both charges Mr Burchell claims he pleaded guilty because ofundue pressure by police officers (including a threat to kill) and malicious obstructionby court staff. He says the trial process was unfair, noting among other things therefusal by Judge Sharp to permit Mr Burchell to summon witnesses at the blackmailtrial.[23] Ordinarily, claims of abuse and malicious conduct by police officers andofficers of the Court must be supported by credible evidence. It appears Mr Burchellwill be relying almost entirely on his own account to enforce his claims of abuse andmalicious conduct. That is a weak evidential basis upon which to mount such claims.1 Bail Act 2000, s 14.2 Din v R [2013] NZCA 610 at [22].3 Bail Act 2000, s 14(3).4 R v Smail [2008] NZCA 6.Furthermore, Mr Burchell's wide ranging claims of this very serious kind, againstmany (perhaps all) persons who are involved in his criminal proceedings, is a factorthat tends to undermine the credibility of his claims. Mr Burchell claims he is thevictim of malicious acts by three major actors in the criminal process – the Police,Probation, and officers of both the District Court and High Court. While I express nofinal view as to merits of those claims, such a coincidence of malicious behaviouracross so many actors is improbable.[24] I have also had the opportunity to review some of the background to the DistrictCourt proceedings. It is evident to me that the District Court went to considerablelengths to accommodate Mr Burchell. Again, while I express no final view on themerits of his claims of unfair process, this ground also appears to be weak.[25] As to timing, I accept, that had the appeal taken place close to or after theexpiry of the home detention period, Mr Burchell's case for suspension would havebeen stronger. But I have addressed this by bringing the date forward.[26] No factors personal to Mr Burchell were highlighted to me, other than hisongoing grievance with his treatment and his mistaken understanding that his sentencehad been stayed, that might bear on the exercise of my discretion to suspend the homedetention.[27] Finally, I have considered the effect of the Covid-19 alert level during thisperiod. It seems to me that this is a somewhat neutral factor – we all its seems aresubject to a level of home detention. Furthermore, I assume that the address was asuitable address insofar as Mr Burchell has the support he requires during this period.If not, I reserve leave for him to come back to me about that.[28] Overall, I am satisfied that the interests of justice do not require suspension ofthe home detention sentence.[29] Accordingly, I accept the hearing needs to be brought forward to 6 April 2020,but I decline to suspend the sentence of home detention.