PN v NEW ZEALAND POLICE [2021] NZCA 658

PN v NEW ZEALAND POLICE [2021] NZCA 658 [6 December 2021]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMES,ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARSREMAINS IN FORCE: [2019] NZHC 2177.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA480/2019[2021] NZCA 658BETWEEN PNAppellantAND NEW ZEALAND POLICERespondentCourt: Collins, Duffy and Dunningham JJCounsel: Appellant in personJ A Eng for RespondentM J Phelps as Counsel assisting the CourtJudgment:(On the papers)6 December 2021 at 9.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] On 23 November 2018, following a five-day Judge-alone trial where PN wasself-represented, he was found guilty of five charges of threatening to kill, threecharges of threatening to do grievous bodily harm and three charges of possession ofan offensive weapon.1 PN was subsequently sentenced to six years' imprisonmentwith a minimum period of imprisonment of three years and eight months.2[2] PN appealed both his conviction and sentence on multiple grounds. His appealwas heard in the High Court on 28 June 2019 with further submissions receivedfollowing the hearing. On 2 September 2019, Cull J dismissed the appeals againstconviction and sentence.3[3] PN now applies to this Court for leave to bring a further appeal against bothconviction and sentence.[4] The Crown opposes the application for leave to bring a second appeal.The offending[5] PN and his partner, CM, were in a relationship for some 12 years and have onechild. Although they came from Hawke's Bay, in 2011 they moved to Australia andended up living in Brisbane. In early 2016 PN was remanded in custody while facingcharges. During that period CM decided to send their child back to Hawke's Bay tolive with her grandmother. When PN was released from custody, the couple agreed toseparate and CM left Australia in November 2016, going back to Hawke's Bay to bewith family.[6] The relationship then deteriorated. In part this seems to be because of CM'sdecision to return to New Zealand, but also because PN felt she had not honoured heragreement to support him emotionally and financially on his release from custody. Inaddition, there was a dispute over accrued child support arrears. PN began to send abarrage of texts, emails and Facebook messages to CM of an increasingly violent andthreatening nature. In these communications, PN threatened to cause bodily harm toher stepfather, threatened to kill her mother and repeatedly threatened to kill her andto cause her grievous bodily harm. The messages were of such unrelenting and violentnature that CM made contact with the Napier Family Harm Policing Team.1 Police v [N] [2018] NZDC 17777 [Conviction Decision].2 Police v [N] [2019] NZDC 6520 [Sentencing Decision] at [73] and [81].3 [N] v Police [2019] NZHC 2177 [High Court Decision].[7] The threats took a more significant turn when in late 2017 PN advised CM thathe had obtained a new passport and was travelling to New Zealand. He arrived inNew Zealand on 10 October 2017 and promptly texted and called her to let her knowhe was in the country. CM was sufficiently concerned for her and her family's safetyto contact the police again. PN was then intercepted on 12 October 2017 at gunpointby the Armed Offenders Squad on the outskirts of Napier. In his campervan, policefound a knife, a crossbow with arrows and a machete. When he was asked whatweapons he had on him he immediately named these three offensive weapons.The trial[8] At trial PN submitted he was not the author of the threatening messages butthat they were created by CM herself as a way of entrapping him on his return to NewZealand. The Judge, relying on the evidence of a forensic analyst which he found"compelling", rejected PN's denial of authorship of the threatening emails and otherdigital messages.4 Although PN provided explanations for carrying the weapons hewas found in possession of, including that they were to be used for hunting small gamein New Zealand or were to be presents for PN's brother-in-law, those explanationswere rejected by the trial Judge.5 He concluded:[214] I am satisfied [PN] specifically travelled to New Zealand for theprobable, frequently declared purpose of killing CM, or of eventually killingher after abducting her, then cutting and mutilating her (in addition to slashingand slicing her face, [PN] refers in one of his emails to cutting off her "tattooedfoot, the one with the silver fern on it"), to probably burning her flesh off herface, a very often repeated threat messaged by him, I am satisfied, in variousmedia.The appeal[9] PN then appealed his conviction and sentence on nine separate grounds, whichincluded:(a) errors by the Judge, and misrepresentations by the Department ofCorrections, Probation Services, the Independent Police Conduct4 Conviction Decision, above n 1, at [194]–[196].5 At [213].Authority and the Judicial Conduct Authority in the decision to declinehim bail;(b) errors in the bail opposition form, which he claimed wrongly said thathis mother was frightened of him;(c) the fact he was self-represented, which affected his ability to have a fairtrial;(d) concerns about pre-trial issues, including in relation to namesuppression and alleged pre-trial ambush;(e) whether the Judge was right to conclude some of the emails threateneduse of the type of weapons he was found in possession of when he wasintercepted by the Armed Offenders Squad; and(f) whether the Judge was right to conclude he was the author of variousthreatening documents.[10] Cull J considered every ground of appeal against conviction, along with theappeal against sentence, and dismissed the appeals on all grounds.6The application for leave to appeal[11] PN now applies for leave to bring a second appeal against conviction andsentence. The proposed grounds for the appeal are set out in an extensive 24-pagedocument.[12] The sole issue for us is whether the application meets the test for a secondappeal contained in ss 237 and 253 of the Criminal Procedure Act 2011. That sectionrequires us to be satisfied that:7(a) the appeal involves a matter of general or public importance; or6 High Court Decision, above n 3.7 Criminal Procedure Act 2011, ss 237(2) and 253(3).(b) a miscarriage of justice may have occurred, or may occur, unless theappeal is heard.We now consider whether PN's proposed appeal meets either test under s 237.PN's proposed appeal against conviction[13] PN's grounds of appeal against conviction do not expressly address the criteriain s 237. However, we ascertain that he considers that a miscarriage of justice has, ormay have occurred, in his case because of the errors which he alleges were made inthe course of his Judge-alone trial, and not rectified on appeal.[14] While PN has set the alleged errors out extensively, we accept, as the Crownsays, they raise the following three issues:(a) whether the weapons found in PN's vehicle are consistent with thethreats made in the threatening messages;8(b) whether an "Australian production order" has been concealed from PNby the prosecution;9 and(c) whether members of the police perjured themselves in making variousstatements relating to bail pre-trial.10By implication, PN says the High Court's findings on these issues were wrong and afinding in his favour could have affected the outcome of the trial.First ground of appeal — the weapons found on PN were not consistent with thethreatening emails[15] In finding PN did not have a lawful reason for possessing the offensiveweapons, Judge Rollo said the crossbow was "clearly capable of fulfilling a threat toshoot CM with arrows", and the hunting knife, machete and sharpening stone were8 Described as PN's first and second "causes of action/grounds for appeal" as set out at pages 1–6.9 Described as PN's third "cause of action/grounds for appeal" as set out at pages 7–16.10 Described as PN's "fourth cause of action/grounds for appeal" as set out at pages 17–24."clearly capable of cutting, mutilating and amputating body parts, and of stabbing CM,as so many email threats refer to".11 PN appears to suggest he was taken by surpriseby this finding by the District Court Judge. When he contested this on appeal, theCrown relied on an email claiming he would shoot CM with a shotgun, not an arrow,and Cull J avoided the discrepancy by simply saying there was a clear reference to"shooting".12[16] In our view, this ground of appeal does not meet the threshold in s 237. It isclearly not a matter of general or public importance. It is a minor factual finding inthe course of an extensive trial.[17] More importantly, having viewed all the emails which were the subject of theDistrict Court proceedings, we do not consider this ground of appeal suggests theremay have been a miscarriage of justice. Even though the emails did not refer toshooting CM with arrows, PN does not contest the finding that the knife and machetewere capable of cutting, mutilating and amputating body parts, as some of the emailsthreatened. Furthermore, this was just one of many factors which led the Judge toreject PN's evidence that he was in possession of the offensive weapons for lawfulpurposes and that instead, he possessed them with the intention of using them to causebodily injury, if not death, to CM and related family members.13 Even though therewas no reference in the emails to threatening to shoot CM with arrows, we considerthere was ample evidence on which the Judge could reach the conclusion that PN wasunlawfully in possession of the offensive weapons for the purposes described by theJudge. As a result, there was no risk of a miscarriage of justice.Second ground of appeal — withholding the "Australia production order"[18] The second issue relates to an allegation that the evidence obtained through an"Australian production order" has been concealed by the prosecution and thushampered PN in running his defence. As the Crown explains, this arises from theappellant's assertion that photographs of three text messages, apparently sent by himfrom Australia, were in fact messages created on the "Viber" application by CM. PN11 Conviction Decision, above n 1, at [217].12 High Court Decision, above n 3, at [63].13 At [213]–[224].alleged that the prosecutor had concealed evidence from Vodafone Australia whichwould have demonstrated that he had not sent the relevant messages.[19] This argument was traversed in the High Court, with PN alleging that theCrown never disclosed his "Vodafone records" and these would prove that thethree text messages he referred to were not sent from him or his cell-phone. However,as the Judge found, the police never obtained a production order for PN's Vodafonenumber in Australia. They did seek a production order for the pre-paid Vodafone NewZealand number that PN purchased when he arrived in New Zealand. PN's Australiancell-phone was taken pursuant to a search warrant and analysed by the police forensicunit but, because the SIM card was never found, the police have not gained access tothe SIM card that related to PN's Australian cell-phone number. The Judge explainedthat the police did not have jurisdiction to issue a production order to have effect inAustralia, and such a request could only be made by the Attorney-General under theMutual Assistance in Criminal Matters Act 1992.14[20] We are satisfied that this issue was thoroughly traversed in the High Courthearing and there is no evidence that an Australian production order has beenconcealed by the prosecution.[21] In addition, it appears PN now has the telecommunication data from VodafoneAustralia he alleges would prove he had not sent the relevant messages. As part ofthis application for leave to appeal, PN applied for an "Australian Vodafone productionorder". The Crown advised while PN could not apply for a production order, he couldapply for a non-party disclosure order under the Criminal Disclosure Act 2008.Subsequently, the Court appointed Mr Phelps to assist the Court to investigate whetherit was possible to pursue third-party disclosure issues with Vodafone New Zealand,and Vodafone Australia.[22] On 5 March 2021 Mr Phelps advised the Court that only Vodafone Australiaretained the requisite information.15 In a minute on 18 June 2021 Collins J recorded:14 At [33]–[38].15 Vodafone Australia retain call information for seven years, including details as to the time and datethat a message was sent and details of the originating and receiving number, although not thecontent of the message.Mr Phelps has made progress in obtaining from Vodafone Australia, recordsof outgoing calls for the relevant period. He handed those records to [PN] on11 June 2021.[23] PN has not provided this information to the Court. Instead, he now claims theinformation provided by Mr Phelps is incorrect and from a different phone companyas the name "TPG telecommunications" appears on the documentation. There isnothing in this submission. TPG Telecom Ltd operates a number of mobile andinternet brands including Vodafone Australia. The logical inference is that theinformation PN has received does not assist him. Again, this is neither a matter ofgeneral or public importance, nor do we consider it points to a possible miscarriage ofjustice.Third ground of appeal — allegations of perjury by police in opposing bail pre-trial[24] The third basis of the appeal relates to a number of allegations that membersof the police perjured themselves in making statements in opposition to PN's pre-trialbail application. These include:(a) saying that he had criminal convictions in Australia, including fordomestic violence and assaulting and obstructing police; and(b) saying that members of the family have contacted police due to fearsfor their own safety.[25] PN says his criminal record from Australia (which he attaches to his groundsof appeal) shows "no conviction recorded" against each offence, albeit there was aminor penalty imposed in some cases. He also says Detective Bailey "fabricated" theclaim the defendant's brother, sister and mother called police for fears for their safety.PN says that these are both proof of perjury and should point to there having been amiscarriage of justice at his trial.[26] We do not consider these matters can have any bearing on the outcome of thetrial. Judge Rollo dealt with PN's police record from Australia and PN's assertion of"maliciously false assertions of convictions". He concluded that "none of those earlyalleged missteps, again viewed from [PN's] perspective, has in reality adverselyinfluenced the conduct of this trial".16 The Judge went on to say:17 I have found no valid evidential basis for the suggestion that there has beenmalfeasance or wrongful actions by any member of the police in the conductof this investigation and prosecution (other than the technical error relating tothe use of the word "convictions" in the police bail opposition form [27] Cull J also dealt with this issue, saying:18Although it was unfortunate that the police misinterpreted the Australianprevious criminal history for [PN] at his bail hearing, this issue and mistakehave no bearing on [PN's] guilt or innocence for the offence for which he hasbeen convicted.[28] Similarly, whether or not there was a divergence of evidence as between PN'smother and Detective Bailey as to whether she was frightened of PN, we accept, asdid Cull J,19 that this is not relevant to whether he was properly convicted on thecharges he faced.[29] In conclusion, the reserved judgment of Judge Rollo was extensive andthorough, and he set out, in compelling detail, the reasons for finding PN guilty on allcharges. After a further hearing, Cull J came to the same conclusions. Nothing inPN's grounds of appeal satisfies us that they contain an issue of general or publicimportance, or that a miscarriage of justice may have occurred when he was convictedon these charges.PN's proposed appeal against sentence[30] PN also applies for leave to appeal his sentence although he does not set outthe grounds for this proposed appeal. We are not satisfied that a second appeal againstsentence is justified. The District Court categorised the offending as "near to the mostserious of cases"20 and the minimum period of imprisonment was justified in light ofthe considerations listed at s 86 of the Sentencing Act 2002. Cull J considered both16 Conviction Decision, above n 1, at [172].17 At [180].18 High Court Decision, above n 3, at [52].19 At [56].20 Sentencing Decision, above n 2, at [60].the length of the sentence and the minimum period of imprisonment imposed werejustified.21 We see no reason to revisit those findings.Result[31] The application for leave to bring a second appeal against conviction andsentence is declined.Solicitors:Crown Law Office, Wellington for Respondent21 High Court Decision, above n 3, at [75]–[76].