NEIL v POLICE [2019] NZHC 230

NEIL v POLICE [2019] NZHC 230 [22 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-297[2019] NZHC 230BETWEEN RICKY VAUGHAN NEILAppellantAND NEW ZEALAND POLICERespondentHearing: 5 February 2019Appearances: Appellant in personY V Yelavich for RespondentJudgment: 22 February 2019JUDGMENT OF BREWER JThis judgment was delivered by me on 22 February 2019 at 3:00 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:Kayes Fletcher Walker (Manukau) for RespondentIntroduction[1] Mr Neil represents himself. He appeals his conviction on one charge ofbreaching a protection order, as found proved by Judge Andrée Wiltens on 15 February2018,1 as well as the sentence handed down by Judge Blackie on 17 August 2018(which was to come up for sentence if called upon). Mr Neil submits he should havebeen discharged without conviction.[2] I must allow the appeal against conviction if I am satisfied the Judge erred inhis assessment of the evidence to such an extent that a miscarriage of justice hasoccurred;2 or for any other reason there has been a miscarriage of justice.3[3] In order to succeed on the appeal against sentence, Mr Neil must satisfy methere is an error in the sentence such that a different sentence should be imposed. Thistest will be satisfied if the sentence is manifestly excessive.4Background[4] Mr Neil is subject to a final protection order imposed on 12 September 2013in respect of his wife of 24 years and their three children. The tragic background tothis case is that on 29 January 2017 one of their children committed suicide. The nextday, there was an interaction between Mr Neil and a group which included his ex-wife.This led to a charge of Mr Neil breaching his protection order. It was dismissed attrial by Judge Andrée Wiltens.5[5] However, following that interaction Mr Neil went to a hotel where an eventwas being held to raise funds for the funeral of the deceased child. Mr Neil acceptshe went into the hotel where his daughter, Pagan Neil, was present with others. Heaccepts he went to the microphone operating at the time and spoke through it to theassembled gathering. What he does not accept is that, in breach of the protection order,1 R v Neil DC Manukau CRI-2017-057-000131, 15 February 2018.2 Criminal Procedure Act 2011, s 232(2)(b).3 "Miscarriage of justice" is defined in s 232(4) of the Criminal Procedure Act 2011.4 See Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].5 R v Neil at [29].he refused his daughter's repeated request to leave the hotel. This was the basis of thecharge on which Mr Neil was convicted.The appeal against conviction[6] Mr Neil has quite a number of points on appeal. All are seen by him asimportant and significant. However, as a Judge I have a different perspective and so Iwill address the points I see as having significance.6[7] The main point is Mr Neil's submission that the Judge should not have reliedon the evidence of the three prosecution witnesses who gave evidence about theinteraction between Pagan Neil and her father. Those witnesses were Pagan Neilherself, Mr Jordan Gartshore and Ms Sammy Lee Stowers. Mr Neil told me all threewitnesses lied and that the evidence shows they were patently unreliable and shouldhave been identified as such by the Judge.[8] On the face of the record, it was open for the Judge to accept the evidence ofthese witnesses. Ms Pagan Neil's evidence, in summary, was directly to the effect shetold Mr Neil several times he was not welcome and that he should leave, before hewent to the microphone. Mr Neil refused to do so. Mr Gartshore corroborated this toan extent. He said he was speaking on the microphone, with Ms Neil close by, whenMr Neil approached, took the microphone and spoke to the crowd. He was unshakenin his evidence that he heard Ms Neil say, "you can't be here, go away". He acceptedhe did not hear any response from Mr Neil. However, he was sure that Ms Neilrepeated herself about four times, adding that Mr Neil needed to leave.[9] Ms Stowers was a manager on duty in the bar. Ms Stowers did not hear or seethe interaction between Ms Neil and Mr Neil described by Ms Neil and Mr Gartshore.6 For Mr Neil's benefit I make the following observations on other points he made. I do not acceptMr Neil's submission that his ability to cross-examine was sufficiently compromised by theabsence of a building layout plan to have created a real risk of affecting the outcome of his trial.The same applies to his submission that he was unwell on one day of the trial. I do not accept hissubmissions regarding CCTV footage of the venue, which a police constable elected not to seizeas evidence on the basis he did not consider it to contain any relevant images. Mr Neil did notadduce any evidence to the effect that the evidence of the police officer on this point was wrong.However, she was aware Mr Neil entered the bar because she heard him speak on themicrophone and said that shortly before that occurred Ms Neil approached her withanother member of the family and asked her to remove Mr Neil from the bar. Herevidence was she took them into her office to calm them down and then went andasked Mr Neil to leave. She said Mr Neil did not argue, was obliging, and they wentout together.[10] Mr Neil's submission is that the Judge should not have preferred the evidenceof these witnesses to his own evidence. So far as his daughter is concerned, he toldme she had previously admitted she lied about her interactions with him during aprevious hearing involving other allegations. Mr Neil, who was assisted by AmicusCuriae at the trial, said he expected the Amicus to have summonsed a police officerwho he thought would give evidence that Ms Neil had admitted her earlier perjury tohim. However, the Amicus did not summons the police officer and he did not cometo give evidence.[11] Ms Yelavich for the Crown explained to me that a pre-trial matter dealt withby Judge Andrée Wiltens on the day the trial started was an application to cross-examine Ms Neil on this allegation. The Judge ruled against the application becausehe did not find it substantiated. Ms Yelavich's understanding is that the police officerwas not called to give evidence at the voir dire because upon inquiry the Amicus didnot think anything would be gained by him doing so.[12] Without evidence, I cannot say one way or the other whether this is an issuewhich might have led to error on the part of the trial Judge. Mr Neil has not put anyevidence before me as to what the police officer might have said. The trial Judge wasaware of the issue and dismissed it as having no sufficient evidential foundation.However, it is clear from his reasons for convicting Mr Neil that the Judge was awarethat Ms Neil was not an unbiased witness because of her hostility towards Mr Neil.The Judge's decision to accept her evidence was based substantially on thecorroboration offered by the other two witnesses.[13] So far as Mr Gartshore is concerned, Mr Neil's submission is that his reliabilityis seriously in question because of estimates of distance and time he gave. There isnothing in that point. Witnesses asked to report such things as the distance of oneperson from another in a crowded venue at a particular time vary notoriously; so doestimates of time going to how long a person spoke or was present. The Judge wasaware of inconsistencies and found them to be unimportant.[14] As to Ms Stowers's evidence, Mr Neil says he was unaware she was known byanother name and had dishonesty convictions under that name. This impacted on hercredibility and had the Judge known of it he would not have placed weight on herevidence. Ms Yelavich confirmed that, unknown to the prosecution at the time of thetrial, Ms Stowers had been convicted under a different name in 2012 of six charges ofmisleading a social welfare officer. The sentence was 325 hours' community work.[15] Ms Yelavich's submission, which I accept, is that even if application had beenmade and leave given to cross-examine Ms Stowers about these convictions, it wouldhave made no difference in the trial. Ms Stowers did not give evidence of the essentialelements of the offence. She was not present at the time Ms Neil says she askedMr Neil repeatedly to leave and Mr Neil refused. Ms Stowers's evidence iscorroborative only to the effect of Ms Neil being clearly upset about her father beingpresent and her request to Ms Stowers to get Mr Neil to leave. Mr Neil denied he hadany contact with Ms Stowers, and the Judge made reference to Ms Neil's evidence thatshe saw one of the duty managers escort Mr Neil out.7[16] I do not find that Mr Neil's criticisms of these witnesses sustain his submissionthat the Judge erred in accepting their evidence.Decision[17] Judge Andrée Wiltens had the opportunity to see and hear the witnesses. Hewas unimpressed, for the reasons he gave, with the evidence given by Mr Neil. Hedid not accept it. The Judge was aware of the fraught history between Mr Neil and hisfamily and made allowances for it. In short, he accepted Mr Neil had refused hisdaughter's repeated demand that he leave because he wished to address the crowd7 R v Neil DC Manukau CRI-2017-057-000131, 15 February 2018 at [32].through the microphone, which he then did before leaving amicably with Ms Stowers.Mr Neil, because he denied any request to leave, did not offer a reasonable excuse forthe behaviour the Judge found proved, and the Judge did not find in the circumstancesthere was a reasonable excuse.[18] There is one final legal element which must be addressed. Mr Neil maintainedin evidence he had never been served with a copy of the final protection order and sodid not know the prohibitions on him. The Judge had no doubt this was wrong andgave reasons, including:8- The Final Protection Order was produced by Consent- Mr Neil was served with the Temporary Order- Mr Neil disputed in the Family Court the need for a Final Order, buthe left in disgust and as a sign of his disapproval prior to theproceedings being completed as he was firmly of the opinion that aFinal Order was inevitably going to be made despite his objections- Mr Neil has been prosecuted for breach of the Final Order on at leasttwo occasions. Judge McIlraith gave a decision in respect of one ofthose hearings where the full extent of the restrictions on Mr Neil'sconduct was elaborated in his presence. "I am of the view thatdisclosure in relation to both those earlier cases and this presentprosecution must have included the actual document – and I find itextremely unlikely that Mr Neil did not peruse that as he certainly wasaware what various witnesses had said in their statements to thepolice"[19] Were it not for Mr Neil's submission that he should have been dischargedwithout conviction, I would dismiss the appeal against conviction because there is nodiscernible error which could give rise to a miscarriage of justice. But, as I will cometo, the possibility of a discharge without conviction being available means I must takea different approach.The appeal against sentence[20] Mr Neil submits he should have been discharged without conviction. It isaccepted that Judge Andrée Wiltens, having delivered his verdicts, raised thepossibility of a discharge without conviction. However, Judge Andrée Wiltens was8 R v Neil DC Manukau CRI-2017-057-000131, 15 February 2018 at [17].not the sentencing Judge. He was overseas at the sentencing date. Judge Blackiesentenced Mr Neil. The Amicus Curiae made submissions to Judge Blackie onMr Neil's behalf. There was no application for a discharge without conviction.[21] Mr Neil told me there is a serious consequence for him of the conviction. Hetold me it is classified as a family violence conviction and it is preventing him fromobtaining a visa for his current partner's daughter to enter New Zealand. I cannotmake any comment on that in the absence of evidence. Furthermore, there can be noappeal against the sentence of Judge Blackie on the basis of a refusal to grant adischarge without conviction because Judge Blackie was not asked to dischargewithout conviction.[22] I discussed with Mr Neil whether, if given the chance, he would be able toproduce evidence of the consequence he told me about. Mr Neil said he could, andwould pursue such an application in the District Court if given the opportunity. Itseems to me, and the Crown accepts, that in the circumstances set out above, the moststriking being the death by suicide of a child the day before the incident, the breach ofthe protection order is very much at the lower end of the scale. A proven consequence,or the real risk of a consequence, of the sort Mr Neil has identified might cross thes 106 Criminal Procedure Act 2011 threshold of being out of all proportion to thegravity of the offending.[23] In my view, Mr Neil should have been given the opportunity to apply to JudgeBlackie for a discharge without conviction. He did not make the application and Icannot say on the evidence that was a result of an informed decision on his part. Ihave decided it is in the interests of justice in this case to give Mr Neil another chanceto make the application.Result[24] Judge Andrée Wiltens's finding that Mr Neil was guilty of the charge is upheld.There will be no re-trial.[25] The conviction entered by Judge Blackie on the charge is set aside to enableMr Neil to apply for discharge without conviction.[26] The sentence imposed by Judge Blackie is also set aside for the same reason.[27] The case is remitted to the District Court for consideration of whether Mr Neilshould be discharged without conviction or convicted and re-sentenced.________________________________Brewer J