MITCHELL v POLICE [2019] NZHC 178

MITCHELL v POLICE [2019] NZHC 178 [15 February 2019]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2018-425-000015CRI-2018-425-000016[2019] NZHC 178BETWEEN NEVILLE MORGAN MITCHELLAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2019Appearances: Appellant in personS N McKenzie for the RespondentJudgment: 15 February 2019JUDGMENT OF NATION JIntroduction[1] Mr Mitchell is now 62 years of age. On 10 April 2018, he pleaded guilty to acharge of disorderly behaviour. He was convicted and sentenced to a fine of $200 plusCourt costs of $130, to be paid at the rate of $5 a week.[2] At a Judge alone defended hearing on 8 and 9 May 2018, Mr Mitchell wasfound guilty of assault. He was convicted and sentenced to 40 hours' communitywork, the Judge considering the appropriate sentence was the least number ofcommunity work hours that he could impose. The Judge also imposed nine months'supervision, a sentence the Judge said he wanted to impose to help Mr Mitchell. Therewere also special conditions that Mr Mitchell was to attend and complete the PositiveLifestyle Programme to the satisfaction of a probation officer and service provider,and to undertake assessment, counselling and treatment for such other offending issuesas directed by and to the satisfaction of a probation officer.[3] On 5 June 2018, Mr Mitchell filed an appeal against the convictions andsentences for both sets of offending on the grounds there were errors in fact and law.[4] On 5 November 2018, Dunningham J issued a minute rescheduling the date forthe hearing of an appeal from 11 December 2018 and made timetabling directions.One of those directions was that Mr Mitchell was to file his points on appeal by 30November 2018. Dunningham J also directed:As this appeal has been on foot for some time, and both statutory and Courtordered timetabling directions have not been complied with by the appellant,I direct that if the direction [just referred to] is not complied with by 30November 2018, the appeal is hereby dismissed pursuant to s 338 of theCriminal Procedure Act 2011.[5] Pursuant to that minute, on 8 November 2018, Mr Mitchell's appeal was setdown for hearing on 4 February 2019.[6] Mr Mitchell did not file points on appeal by 30 November 2018. A documentwith 17 paragraphs, that might have been considered points of appeal, was filed withthe Court around 25 January 2019.[7] The proceedings were called before the Court on 4 February 2019. When theproceedings were first called, both Ms McKenzie for the respondent and Mr Mitchellindicated that, given what was set out in the points on appeal, they were not in aposition to proceed.[8] I stood the matter down so that I could discuss the situation further to clarifyon what basis the appeal might proceed and any directions that would have to be givenif the appeal was to proceed further or whether, in light of the Judge's directions of 5November 2018, the appeal had to be treated as dismissed.Section 338 Criminal Procedure Act 2011 (CPA)[9] This states:338 Power of appeal court to dismiss appeal for non-compliance withprocedural orders(1) Despite anything in subparts 2 to 10, an appeal court may dismiss anappeal if the appellant fails to comply with a timetable or otherprocedural orders fixed for the appeal.(2) Before dismissing an appeal under subsection (1), the appeal courtmust give the appellant 10 working days' notice of its intention todismiss the appeal.(3) The appeal court must not dismiss an appeal under subsection (1) ifthe appellant, after having been given notice under subsection (2),rectifies the non-compliance within the notice period given by thecourt.(4) A reference in any enactment other than this section to theabandonment of an appeal under this Act must, unless the contextotherwise requires, be read as including a reference to a dismissalunder subsection (1).(5) In this section, appeal includes an application for leave to appeal.Background[10] On 8 June 2017, Mr Mitchell went to the premises of a Wanaka physiotherapybusiness wanting to discuss a complaint with the owner. He was taken into a room todiscuss the complaint. The Police alleged the discussion became heated. Anotherperson (the victim) came into the room to help usher Mr Mitchell from the premises.While doing this, the Police alleged Mr Mitchell assaulted the victim by pushing athim. Mr Mitchell was charged with assault under the Summary Offences Act 1981.[11] On 7 November 2017, Mr Mitchell was at the Maui Camper depot in Frankton.The Police allege he became threatening and abusive with a staff member, refused tohand over keys to a vehicle he was complaining about and pushed a female victim outof the way. He was charged with assault and behaving in a disorderly manner underthe Summary Offences Act 1981. He pleaded not guilty to those charges.[12] On 10 April 2018, at a hearing before Judge Callaghan in the District Court,with Mr Mitchell represented by counsel, the charge of assault in connection with theMaui Camper incident was withdrawn by leave. Mr Mitchell entered a plea of guiltyto the charge of behaving in a disorderly manner. The Judge remanded him forsentence on 8 May 2018 when the Court was to deal with other matters. The Judgenoted:10.00 am has medical issues re brain bleed. Counsel asked to file memo withsupporting information. Are for sentence to follow other matters - apologyletter??[13] On 8 May 2018, there was a defended hearing before another Judge in theDistrict Court in relation to the alleged assault at the Wanaka physiotherapy clinic. MrMitchell did not give evidence or call any witnesses for the defence at the trial. Thehearing was adjourned to 9 May 2018 when the Judge gave his decision finding thecharge proven. He then imposed the sentences already referred to for the assault andthe charge of disorderly behaviour to which Mr Mitchell had already pleaded guilty.Mr Mitchell was represented at that time by Mr Mooney.[14] In June 2018, Mr Mitchell filed his notice of appeal against both convictionsand sentences. The notice of appeal was filed by Ms S Vidal as counsel.[15] On 26 September 2018, the Court issued a notice to Mr Mitchell, care of MsVidal, advising the appeal would be heard at the High Court in Invercargill on 23October 2018.[16] On 19 October 2018, Ms Vidal filed a memorandum for the Court. In it shesaid counsel had a provisional grant of legal aid to assess whether there was a basis toadvance Mr Mitchell's appeal, as he had different trial counsel. She advised that shereviewed the conviction and sentence decisions and could not discern a basis uponwhich to advance the appeal. She said Mr Mitchell had raised separate and distinctissues in regard to the competency of counsel, and a procedural matter that was notapparent on the decisions of the Court. Ms Vidal said she had explained the steps MrMitchell would have to take as to waiver of legal professional privilege and the filingof affidavits. In the memorandum, she confirmed that Mr Mitchell wished to have theopportunity to do this and did not wish to abandon the appeal. She sought leave towithdraw but asked for an adjournment of the appeal hearing to enable Mr Mitchell toprepare and file those documents. She said he would be doing this on his own behalfas he would be a self-represented litigant.[17] On 23 October 2018, Dunningham J issued a minute following a hearing on 23October 2018. She referred to the memorandum that had been filed by Ms Vidal andadjourned the appeal for hearing on 11 December 2018 at 10.00 am. She directed:(a) the appellant is to file his points on appeal (which means the specificpoints he wishes to make about why the appeal should be allowed), and,if he is pursuing a challenge to counsel competence, a waiver of privilege(which means a document confirming that his lawyer at the District Courthearing can discuss the legal advice he gave the appellant about theconduct of the case with the respondent's lawyers), by Friday, 2November 2018;(b) the appellant is to file and serve his submissions by 20 November 2018;(c) the respondent is to file and serve its submissions by 27 November 2018.Dunningham J also granted leave to Ms Vidal to withdraw as counsel.[18] On 9 October 2018, counsel for the respondent, Ms McKenzie, filed therespondent's submissions for the appeal.[19] On 31 October 2018, in a letter headed to "Your Honour Justice Dunningham",Mr Mitchell began by saying he had been given until 2 November 2018 to submitbullet points for an appeal. He referred to difficulties he was facing in completingthose points on appeal and sought an extension of time for doing so. He asked for arescheduling of the hearing on 11 December 2018 because he had arranged to beoverseas at that time. He referred to various other matters.[20] On 5 November 2018, Dunningham J issued a minute which I set out in full:[1] The Court is in receipt of a lengthy letter from the appellant, MrMitchell, which outlines his personal history, health issues, and his dealingswith his solicitors and others in relation to the charges and subsequentconvictions giving rise to this appeal.[2] What is relevant from the Court's perspective is that Mr Mitchell isseeking an extension of the direction I made on 23 October 2018, requestingMr Mitchell is to file his points on appeal, and, if he is pursuing counselincompetence as a ground of appeal to file a waiver of privilege. Mr Mitchellalso seeks a rescheduling of the hearing of the appeal on 11 December 2018as he has prior travel plans for that date.[3] The reasons for seeking the extension include the following:(a) Mr Mitchell is very unwell;(b) he is still in communication with his legal aid case worker and heappears to understand there is still the possibility of legal aidfunding;(c) he has an appointment with a community law case worker on7 November 2018 at Wanaka, and his ability to comply with thedirection appears to be dependent, in part, on receiving assistanceor advice from that person.[4] In light of the myriad of issues that Mr Mitchell is facing, the proposedhearing of the appeal on 11 December 2018 is vacated. I make the followingamended timetabling directions:(a) the appellant is to comply with the direction at [3](a) of myminute dated 23 October 2018,1 by 30 November 2018;(b) if it is complied with then the appellant is to file and serve hissubmissions by 25 January 2019;(c) the respondent is to file and serve its submissions by 1 February2019;(d) the appeal is to be set down for hearing as soon as practicablethereafter.[5] As this appeal has been on foot for some time, and both statutory andCourt ordered timetabling directions have not been complied with by theappellant, I direct that if the direction at [5](a) above is not complied with by30 November 2018, the appeal is hereby dismissed pursuant to s 338 of theCriminal Procedure Act 2011.[21] Court records confirm that a copy of the minute was sent to Mr Mitchell andto the respondent. The copy for Mr Mitchell was sent to him at the address he hadused in writing to the Court, PO Box 58, Wanaka.[22] On 8 November 2018, the Court sent to both Mr Mitchell and the Crown noticeof the new date of hearing for the appeal on 4 February 2019. That notice was sent toMr Mitchell's address at his PO Box and posted on 8 November 2018.1 And reissued 25 October 2018.[23] On 27 November 2018, the High Court at Christchurch sent Mr Mitchell aletter referring to Dunningham J's minute of 23 October 2018 and the earliertimetabling directions for the filing of submissions. The letter also advised "As perthe Judge's minute dated 5th November, if the Court is [sic] timetabling directionshave not been complied with by the 30th November 2018 the appeal will bedismissed".[24] It is evident from the above summary that Mr Mitchell had failed to complywith timetabling directions set out in Dunningham J's minute of 23 October 2018because he had not filed his points on appeal by Friday 2 November 2018. Therequirement in s 338(1) CPA for the dismissal of the appeal had thus been met. Hehad also not filed submissions by 25 January 2019.[25] In her minute of 5 November 2018, Dunningham J gave Mr Mitchell notice ofthe Court's intention to dismiss the appeal after 30 November 2018 if he had not filedhis points on appeal by that time. The High Court had thus given Mr Mitchell 10working days' notice of its intention to dismiss the appeal, as referred to in s 338(2)CPA.[26] Mr Mitchell had not, by 30 November 2018, rectified the omission to filepoints on appeal so he had not rectified the non-compliance within the notice periodgiven by the Court. The requirements for dismissal, set out in s 338(3), had thus beenmet.[27] Enquiries of Court Registry staff indicate that, in the latter half of December2018, there were discussions between Registry staff in Christchurch and Mr Mitchellin which Mr Mitchell was told he needed to file submissions. On 17 December 2018,Mr Mitchell emailed Registry staff and asked the Court to send him a number ofdocuments. It appears Court staff did not discuss with him his failure to file his pointson appeal or the fact that, in accordance with Dunningham J's minute of 5 November2018, his appeal was dismissed.[28] On 8 January 2019, the High Court sent to Mr Mitchell copies of the documentsthe Court was holding which the Registry considered he was entitled to relevant to hisappeal. Those documents comprised:(a) the transcript of evidence given at the hearing on 8 June 2018;(b) particulars of witnesses who had given evidence at the hearing;(c) a brief of evidence for a witness, Constable Bruce McLean, which, byconsent, the Constable was permitted to read;(d) a transcript of the working copy of the DVD record of Mr Mitchell'sinterview with Mr McLean that took place on 8 June 2017;(e) a copy of the Judge's oral decision of 9 June 2018 finding the charge ofassault proven; and(f) a copy of the Judge's sentencing notes of 9 May 2018.[29] Later in January 2019, Mr Mitchell filed the document with 17 paragraphs. Irefer to that document as 'points on appeal'. That does not mean the documentproperly or adequately set out matters which could properly be advanced as groundsfor the appeal he intended to pursue.[30] No further submissions were filed by either Mr Mitchell or the Crown beforethe hearing on 4 February 2019. Ms McKenzie said the Crown had proceeded on thebasis the appeal would have been dismissed because of the failure to file points onappeal.Mr Mitchell's points on appeal and discussion of 4 February 2019[31] While that could be considered the end of the matter, out of fairness to MrMitchell and to establish just what directions might be needed if I was to treat theappeal as still being before the Court, I discussed various matters referred to in hispoints on appeal. Mr Mitchell had the support of a Baptist Minister, Mr Jordan, duringthe hearing and at several points deferred to him before responding.[32] It was apparent from Mr Mitchell's document that points he wished to make inpursuing an appeal, based on the record of evidence from the trial and the Judge'sdecision, included the following:(a) he considered the statements made by Constable McLean were misleadingand at times non-factual. (He does not say how that was so or how thiswas relevant to the decision the Judge came to.);(b) the Judge asked questions and lead the witnesses, the victim and thephysiotherapist who had given evidence;(c) the Judge had made comments in his initial decision based on what he hadseen and heard in Mr Mitchell's Police interview that Mr Mitchell was"consumed by his dispute with ACC", that Mr Mitchell's relationship withACC was "somewhat tense to say the least" and that Mr Mitchell haslongstanding issues with the ACC and appeared to be battling with themon multiple fronts, having gone to the length of involving the then Ministerof ACC;Mr Mitchell contends the Judge's comments about ACC were "unlawfuland inappropriate". In that connection, he also sought to provide the Courtwith a letter from IRD as to amounts he said he had paid ACC;(d) Mr Mitchell said he wished to revisit evidence given by the victim and thephysiotherapist but confirmed to me that, by this, he wished to makesubmissions about their evidence and was not seeking to put before theCourt new evidence as to what the witnesses had said in their evidence attrial; and(e) the transcript of the Court hearing was not complete and did not include atranscript of all comments made by the Judge. In this regard, MsMcKenzie noted that, as is usually the case, the transcript may well nothave included transcript of discussions that took place between the Judgeand either the prosecutor or defence counsel and suggested that, if theappeal was going to proceed, it might be appropriate for the Court torequire a transcript of such a discussion.[33] I did not generally discuss with Mr Mitchell whether there was any real meritin these above points or whether, even if there was, they would be sufficient for hisappeal to succeed.[34] Mr Mitchell's points included various paragraphs which appeared to relate tothe way in which the incident concerning the Maui Camper assault/disorderlybehaviour charges were investigated. In particular, there was a reference to a failureof the Police to obtain video evidence about something that might have occurred at theQueenstown International Airport.[35] Mr Mitchell confirmed that he had entered a plea of guilty to the disorderlybehaviour charge with counsel present after the related assault charge in connectionwith that incident had been dropped. Mr Mitchell said he had done this on the basisthere would be no penalty on the charge to which he pleaded guilty. I pointed out thatthe record did not support this because, with counsel present, after pleading guilty, hewas remanded to be sentenced on that matter when the other charge he was facing wasdealt with. This led to Mr Mitchell telling me that he was not seriously concernedwith his conviction or the penalty imposed on that charge and that he would not beproceeding with an appeal either as to the conviction following his guilty plea on thecharge of disorderly behaviour or the penalty by way of fine that was imposed on thatcharge. After discussing the matter with Mr Jordan, Mr Mitchell confirmed that, ifthat appeal had not already been dismissed, then he was abandoning it.[36] There were a number of other points which Mr Mitchell indicated he wishedto advance in support of the appeal against his conviction for the assault at the Wanakaphysiotherapy clinic.[37] Mr Mitchell complained that the Judge had prohibited him from, throughcounsel, asking questions or putting before the Court information which I understoodrelates to the victim's alleged involvement in other incidents of violence, perhaps in adomestic relationship, that had occurred a number of years before the incident at thephysiotherapy clinic. He had also wanted to cross-examine or seek to ask questionsabout alleged incidents that had occurred with the victim after the incident at thephysiotherapy clinic and information which Mr Mitchell wished to put before theCourt as to how, ultimately, he had come to serve a trespass notice on the victim.[38] Mr Mitchell claimed the Judge had discussed whether or not such questioningwould be permitted with the Police prosecutor and Mr Mitchell's counsel before thehearing when Mr Mitchell had not been present. It seemed it may have been agreedthere would be no questions or evidence as to these matters but, from Mr Mitchell'spoint of view, this would have been because the Judge had effectively ruled that thiswas how the hearing would proceed. There is no record of any ruling in this regard.If Mr Mitchell's counsel was effectively prohibited from putting before the Court,through cross-examination or otherwise, information which was relevant and if thishad the real potential to unfairly prejudice Mr Mitchell with his defence, then it wouldhave been necessary for evidence in that regard to be put before the Court. If MrMitchell's counsel had agreed to matters proceeding in that way, Mr Mitchell wouldhave had to provide Mr Mooney with a waiver of privilege. Ms Vidal advised himthis is what he would have to do.[39] In his points of appeal, Mr Mitchell was also critical of the fact the Judge hadnot allowed the defence to call evidence from a Mr Vink, a Police officer who it seemshad also arrived at the Wanaka physiotherapy clinic following a call to the Police frompeople at the clinic. In his points of appeal, Mr Mitchell referred to his counsel havingserved a subpoena on Mr Vink but the Judge deciding, after discussions with counseland the prosecutor, that Mr Vink would not be required to give evidence. It seemsthat, amongst other matters, Mr Mitchell wished to question Mr Vink about why hehad not obtained statements from other people at the clinic who might have seen whathad happened.[40] In discussing the matter with me, Mr Mitchell however referred to Mr Mooneyhaving Mr Mitchell sign a document by which it seemed he would be accepting thatMr Vink was not to give evidence.[41] At present, there is no record of a ruling on this point. That being the case, ifthe appeal were to continue, as well as perhaps seeking to put before the Courtevidence by way of affidavit from Mr Mooney, Mr Mitchell would have to provide MrMooney with a document waiving privilege in respect of all communications betweenhimself and Mr Mooney with regard to the conduct of the hearing.[42] In his points on appeal, Mr Mitchell made a number of statements attackingthe integrity of the prosecutor who appeared for the Police at the hearing. He referredto the way in which a transcript was produced of the working copy of the DVDinterview as being produced by the prosecutor "to mislead the Court to pervert thecourt of justice in tampering with evidence". He referred to the Judge being"cohesive" [sic] with this.[43] Mr Mitchell also referred to the Judge's alleged ill-health and also madecomplaints about another Judge before whom he had appeared at some stage duringthe proceedings. That other Judge had recused himself because of statements MrMitchell made about him and had taken no part in any of the decisions which wouldhave been at issue on appeal. Mr Mitchell accepted that the poor health or otherwiseof the Judge who presided over the hearing would not be relevant to any considerationof whether, on the record of what happened at the hearing, Mr Mitchell's appeal hadany merit. Again, after discussion with his support person, Mr Mitchell said that, ifthe appeal were to continue, he would not be seeking to refer to these matters.[44] In his points on appeal, Mr Mitchell also complained that he had not been ableto put before the Court evidence about discussions which he claimed had taken placewith the Police that might have led to a resolution of all matters in a way that wouldhave avoided the conviction and sentence he is now subject to. It is readilyunderstandable that, if any such discussions did not lead to resolution, evidence as tothose discussions would likely have been irrelevant and thus inadmissible on thehearing of the appeal. As matters stand, there was no evidence before the High Courtas to those discussions which this Court would have been able to consider on thehearing of the appeal.[45] Mr Mitchell also sent to the Court with his points on appeal various documentshe wanted the Court to consider but which were not part of the evidence from theDistrict Court trial.[46] I have referred to all the above matters not as a consideration of the merits ofthe appeal but to provide information as to the context in which I have consideredwhether the appeal has been dismissed and thus deemed to have been abandoned,pursuant to Dunningham J's minute and s 338 CPA. I have considered this necessarybecause of Mr Mitchell's statement that, if the appeal is treated as dismissed, he wouldbe taking the matter to the Supreme Court.Conclusion[47] Against that background, I find that Mr Mitchell's appeal has been dismissed.Pursuant to s 338(4), the dismissal of the appeal, as directed by Dunningham J, isdeemed to be an abandonment of Mr Mitchell's appeal.[48] Under s 339 CPA, Mr Mitchell would have had a right to apply to the Court ofAppeal for leave to appeal against the dismissal. Because of the delay that has clearlyoccurred, Mr Mitchell would also have to apply for leave to extend the time for suchan appeal. Given Mr Mitchell's wish to pursue various points on appeal that wouldrequire both the admission of new evidence and a waiver of privilege, such anapplication would have to be supported by affidavit evidence as to the steps he hastaken in this regard and the new affidavit evidence he is wishing to put before theCourt. Mr Mitchell should not think that anything I have said in this judgmentindicates that, if he does take these steps, his application to extend the time for anappeal and an appeal against dismissal would be successful.[49] The discussion I had with Mr Mitchell concluded with his referring to the wayhe was in a poor state of health at the time relevant events had occurred and the waythis had affected various people he had been involved with. He apologised for that.With the support available to him, Mr Mitchell will need to consider carefully whatmight be gained from attempting to re-open an appeal in respect of the conviction andsentence that remain in place and all that he would have to do to persuade the Courtof Appeal that he should have the opportunity to do so. I also record that he was clearin the discussion before me that he was not now wishing to pursue an appeal in respectof his conviction and sentence on the disorderly behaviour charge.[50] As matters stand, Mr Mitchell's appeal has thus been dismissed and is deemedto have been abandoned. That being the case, he is subject to the sentences imposedon 9 May 2018. Mr Mitchell must report to the Department of Corrections at theWanaka Police Station at 1.00 pm on Wednesday 27 February 2019.Solicitors:Preston Russell Law, InvercargillCopy to:Mr N M Mitchell.