LARSEN v THE NEW ZEALAND POLICE [2020] NZHC 2520

LARSEN v THE NEW ZEALAND POLICE [2020] NZHC 2520 [25 September 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-69[2020] NZHC 2520BETWEEN SCOTT WILLIAM LARSENAppellantAND THE NEW ZEALAND POLICERespondentHearing: 22 September 2020Counsel: Mr Larsen self-represented with two support personsD P Neild for the respondentJudgment: 25 September 2020JUDGMENT OF CULL J[1] The "living sovereign man scott-william of the house of larsen" appeals theconviction and sentence of Scott William Larsen (Mr Larsen) in respect of twocriminal charges, on the grounds of fraud and perjury.[2] On 26 June 2020,1 Mr Larsen was found guilty and was convicted at a Judge-alone trial in the District Court of driving while forbidden2 and assaulting a policeconstable.3 The Judge-alone trial proceeded in the absence of Mr Larsen under s 124of the Criminal Procedure Act 2011.4 Mr Bott appeared as Counsel appointed to assistthe Court. On the same date, Mr Larsen was sentenced on the two convictions to comeup for sentence if called upon and a six-month disqualification from driving.51 New Zealand Police v Larsen DC Masterton CRI-2020-035-000005, 26 June 2020.2 Land Transport Act 1998, s 52(1)(c) – maximum penalty a $10,000 fine.3 Summary Offences Act 1981, s 10 – maximum penalty six months' imprisonment or a $4,000 fine.4 See Larsen, above n 1, at [2]; and New Zealand Police v Larsen DC Masterton CRI-2020-035-000005, 26 June 2020 (Ruling of Judge Hobbs).5 New Zealand Police v Larsen DC Masterton CRI-2020-035-000005, 26 June 2020 (Minute ofJudge Hobbs), see addendum.[3] Mr Larsen appeals against both the convictions and sentence on the grounds offraud and perjury.Factual background[4] The following is taken from the District Court's summary of facts andConstable Chu and Constable Rikys' Police statements.6[5] On 4 April 2019, Constable Jones was on patrol in Featherston. He wasspeaking to Mr Larsen who was known to him. While conducting police checksConstable Jones established that Mr Larsen's driver's licence had expired on22 January 2018. As a result, Constable Jones served on Mr Larsen a road safetydirective, which prohibited Mr Larsen from operating a motor vehicle from 4 April2019 until he obtained an appropriate driver's licence. Constable Jones gave evidencein the District Court that he fully explained to Mr Larsen what might occur should hebe caught driving without an appropriate licence, including the possibility of vehicleimpoundment and a court appearance.[6] On 30 December 2019, Constables Chu and Rikys were working together.They completed a vehicle stop on a motor vehicle. Constable Chu had established thatthe vehicle's warrant of fitness had expired, and the driver gave his name as ScottWilliam the House of Larsen. Constable Chu searched the owner of the vehicleregistration on his mobile device, clicked on the photograph to enlarge it and showedit to the driver of the vehicle, who confirmed that it was him, namely Scott WilliamLarsen.[7] After Mr Larsen had been stopped and told that he was a forbidden driver, hesaid he was going to leave. Constable Chu gave evidence that it looked as if Mr Larsenwas going to drive off and reached for the car keys. After asking for the car keys,Constable Rikys reached in to grab the vehicle keys to prevent Mr Larsen from drivingaway. As she did so, Mr Larsen wound the window up on her arm. Eventually, MrLarsen wound the window down. Constable Chu then grabbed his wrist and ConstableRikys grabbed the keys.6 Larsen, above n 1, at [4]-[13].District Court decision[8] In the District Court, the Judge noted the prosecution had the burden of provingbeyond reasonable doubt the essential elements of the two charges. He then outlinedthe facts as above.[9] On the driving while forbidden charge, the Judge concluded that, based on theevidence of Constables Chu and Rikys, Mr Larsen drove the motor vehicle on30 December 2019 despite not having a valid driver's licence and despite beingforbidden to drive until he had obtained an appropriate licence.7 The Court concludedthat it was satisfied beyond reasonable doubt that on 30 December 2019, Mr Larsendrove a motor vehicle during a period that he had been forbidden from driving inbreach of s 52(1)(c) of the Land Transport Act 1998 and found him guilty of thatcharge.8[10] On the assault charge, the Judge explained the two essential elements to thisoffence are an assault, defined as the direct or indirect international application offorce, and that the victim was a police officer acting in the execution of his or herduty.9 The Judge concluded that the evidence of Constables Rikys and Chu wasconsistent and unchallenged. In addition, there was a photograph produced as anexhibit of Constable Rikys' right arm which clearly showed a bruise that ConstableRikys said was sustained when the window was wound up onto her arm by Mr Larsen.He concluded this was the indirect application of force by use of the window, and thatit was the intentional application of indirect force.10 He also concluded that at the timeof the assault, Constable Rikys was acting in the lawful execution of her duty as apolice officer. He therefore found Mr Larsen guilty of that charge.11[11] Having found Mr Larsen guilty of the two charges, the Judge issued a minuterecording that the trial proceeded in Mr Larsen's absence under s 124(1) of theCriminal Procedure Act but that s 123 of that Act prohibits the Court from sentencing7 Larsen, above n 1, at [8].8 At [9].9 At [10].10 At [15].11 At [17].a defendant in his or her absence on a category two offence.12 On that basis, the Judgedirected a notice under s 124(3) be served on Mr Larsen, advising him to appear forsentencing at a later date. The Judge indicated that another Judge could sentenceMr Larsen, observing that the assault on the police officer was not one of the mostserious of its kind that comes before the Court and the driving offence "is a fineableonly matter with a mandatory disqualification period."13[12] Subsequent to the issue of that minute, after Counsel assisting spoke to him,Mr Larsen came back into the courtroom and was sentenced on the assault charge tocome up for sentence if called upon within nine months and disqualified from drivingfor six months for the failing to comply with the prohibition.14Approach to appealsApproach to conviction appeal[13] An appeal against conviction in a judge-alone trial is a general appeal,governed by s 232 of the Criminal Procedure Act. The appellant must satisfy the Courtthat a miscarriage of justice has occurred, either because "the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage of justice has occurred"or for any other reason.15 A miscarriage of justice is "any error, irregularity, oroccurrence" that "has created a real risk that the outcome of the trial was affected" or"has resulted in an unfair trial or a trial that was a nullity".16 As s 232 makes clear,not every "error or irregularity" causes a miscarriage of justice.17[14] The Supreme Court has recently re-examined the role of s 232(2)(b) and thegeneral function of an appellate court.18 In Sena v Police, the Supreme Court held thatthe function of the appellate court is to re-evaluate the evidence and an appellant isentitled to the appeal court's determination of whether the first instance judge was12 Larsen, above n 5, at [2]. Assault on a police officer is a category two offence.13 At [3].14 See addendum.15 Criminal Procedure Act 2011, s 232(2).16 Section 232(4).17 "A miscarriage is more than an inconsequential or immaterial mistake or irregularity": Matenga vR [2009] NZSC 18 at [30].18 Yusuke Sena v New Zealand Police [2019] NZSC 55.right or wrong substantively on the outcome. On this approach, if the appellate courtcomes to a different view on the evidence, the trial judge necessarily will have erredin their assessment.19[15] The Court cautioned however that this change of approach does not mean therole of the appellate court is to consider the issues de novo as if there had been nohearing at first instance. Since it is an appeal, it is for the appellant to show than anerror has been made. In assessing whether there has been an error, an appellate courtmust take into account any advantages a trial judge may have had. Where thechallenge is to credibility findings based on contested oral evidence, an appellate courtwill exercise "customary caution".20[16] The onus is on the appellant, Mr Larsen, to satisfy the Court that the Judgeerred in his assessment of the evidence to such an extent that has created a real riskthat the outcome of the trial was affected.[17] If the appeal is successful, the Court must set aside the conviction and eitherdirect that a judgment of acquittal be entered or that a new trial be held, or make anyother order it considers justice requires.21Approach to sentence appeal[18] This appeal is brought under s 250 of the Criminal Procedure Act. An appealagainst sentence is an appeal against a discretion. An appeal against sentence must beallowed if the Court is satisfied that, for any reason, there is an error in the sentenceimposed and a different sentence should be imposed.22 The focus is on the finalsentence and whether that was in the available range, rather than the exact process bywhich it was reached.2319 At [38].20 At [38]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR141 at [13] (footnote omitted).21 Criminal Procedure Act, s 233(3).22 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.23 Ripia v R [2011] NZCA 101 at [15].DecisionConviction appeal[19] In his notice of appeal, dated 26 June 2020, Mr Larsen's ground of appeal was"perjury". From his written and oral submissions however, three principal issuesemerge.[20] First, he submits he is not to be referred to as Mr Larsen. He submits that the"corporate name" of Larsen that the courts are using is a reference to an "artificialentity created through the use of artificial construct by all Crown representatives andforcefully against the will of the living man: scott-william." Because he does notrecognise himself as Mr Larsen, he says that the living scott-william was never invitedto any Court, nor addressed by any Police and therefore the proceedings are null andvoid.[21] Section 379 of the Criminal Procedure Act provides:No charging document, summons, conviction, sentence, order, bond, warrant,or other document, and no process or proceeding may be dismissed, set aside,or held invalid by any court by reason only of any defect, irregularity,omission, or want of form unless the court is satisfied that there has been amiscarriage of justice.[22] The observations of the Court of Appeal in the recent decision of Talley'sGroup Ltd v WorkSafe New Zealand on the ambit of s 379 and the effect of any defectson a charging document is helpful:24 A charging document will be a nullity if it fails to disclose an offence, or adefendant, or is so unintelligible that the nature of the offence cannot beascertained. Such will also be the case where the charge lacks a requiredstatutory consent, or is out of time. To void a charging document therefore,relevant defects must be so radical as to deprive the document of its essentialcharacter. Technical or mechanical defects will not suffice, and the courts willbe slow to reach such a "drastic conclusion". It follows that even seriousdefects will be protected by s 379 of the CPA if, despite the impugned defect,the document nonetheless discloses a recognisable charge, a recognisabledefendant, (where necessary) is in time and is supported by statutory consents.But if one or more of these elements is missing, "there is nothing before theCourt capable of rectification".24 Talley's Group Ltd v WorkSafe New Zealand [2018] NZCA 587, [2019] 2 NZLR 198 at [45](emphasis added).[23] Despite the alleged error in references to "Mr Scott Larsen" in the proceedings,the information laid against Mr Larsen disclosed a recognisable charge and arecognisable defendant.25 Mr Larsen does not appear to dispute that he was the personcharged. Rather he maintains that he has been charged under a false construct and"Scott William Larsen" is an artificial entity that the state has created. He says hismother gave him the name "scott-william" and, although his family name is Larsen, itis not his name but a name that goes back thousands of years. It is on this basis thatMr Larsen believes he would be committing perjury to accept the name as his. Inessence, he says that Scott William Larsen is a corporate entity and is not the "livingman: scott-william".[24] I am unable to accept Mr Larsen's submission. Mr Scott William Larsen is, atlaw, "the living scott-william". They are one and the same. Mr Larsen was chargedappropriately by the Police and appeared before the District Court. The Judge alsofound there was no doubt that Mr Larsen was the person Constables Chu and Rikyspulled over at the traffic stop on 19 December 2019. Mr Larsen accepted as much onthat day and I see no reason, nor has one been submitted to me, to come to any otherconclusion. Identity is not in issue in these proceedings, and I take that submission nofurther.[25] Second, Mr Larsen submits there has been corruption, breach of the code ofconduct to act in good faith, and breach of the fundamentals of contract. He says thatthe actions by the Police and the Court have been made with intent "to deceive livingman: scott-william to gain ownership of him using Fraud, Force, in a world ofCommerce and Contract." He explains that the actions of all parties involved in thematter are guilty of "many crimes" against a living person and also corporate crimes.He submits that the Police and District Court "claims" are fraudulent, particularly asthey have not followed due process. He says this makes their claims null and void.[26] It is a serious allegation to claim that the Police and the District Court haveacted fraudulently and/or have ignored due process. Fraud requires a dishonestactivity that causes loss to an individual, company or corporation. Mr Larsen points25 See, for example, Phillips v New Zealand Police [2020] NZCA 425.to the asserted misuse of his name by Police and the Court as being fraudulent. I havealready addressed why this claim cannot succeed. It is not fraudulent to refer toMr Larsen by the name on his birth certificate. Allegations of perjury are even moreserious. To prove perjury requires both a wilful falsity and an intent to mislead.26 Itis a high threshold to prove and is not made out on the facts before me and nor is it aproper or lawful allegation to make in these circumstances.[27] Third, Mr Larsen and his supporters make the claim that as Governors of theAriki Nui o Tuhoe Government, they are not subject to the laws of New Zealand orActs of the Crown. The submission is that as Governors, they carry the jurisdiction ofthe native constitution and government that was carried by their tupuna and recognisedby the Anglican Church. Although there was no formal acknowledgement thatMr Larsen protested the Court's jurisdiction, I address these submissions as a potentialprotest to jurisdiction. Any protest to the Court's jurisdiction on the basis of anassertion of Māori sovereignty is without merit. Similar challenges to jurisdiction andsovereignty have been made previously and the higher courts have repeatedly rejectedthem.27[28] I therefore find there has been no miscarriage of justice.[29] For completeness, I deal with the Judge's decision to proceed with the trial inthe absence of Mr Larsen. Section 122 of the Criminal Procedure Act gives a judgejurisdiction to proceed in the absence of a defendant if the Court "is not satisfied thatthe defendant has a reasonable excuse for his or her non-attendance", unless "the Courtis satisfied that it would be contrary to the interest of justice to do so". Section 124sets out the procedure that applies when a hearing proceeds in the absence of thedefendant and provides that the hearing may proceed up to and including the deliveryof the judge's decision.2826 R v Goodyear-Smith HC Auckland T332/92, 27 July 1993 at 5.27 See, for example, Yates v R [2019] NZCA 155; Morunga v Police [2016] NZCA 599; Wallace v R[2011] NZSC 10; Phillips v R [2011] NZCA 225; R v Toia [2007] NZCA 331; and Creeks v R HCAuckland A138/00, 6 November 2000.28 Criminal Procedure Act, s 124(2)(d)(ii).[30] On 26 June 2020, the morning of the hearing, Mr Larsen was present in thecourthouse. When his matter was called he appeared in the doorway of the courtroomwith two support people but refused to enter the body of the Court. He had a longconversation with the Judge, which was summarised in the Judge's first ruling,29 andin which Mr Larsen outlined his views as to why he did not intend to enter thecourtroom past the doorway. His reasons involved being a "natural man", the law ofconstructive trusts and an analogy with the Anglican Church.[31] I am in agreement with the District Court Judge that there was no good reasonfor Mr Larsen's non-attendance, particularly given he was in the Court building, andthe trial proceeded appropriately in Mr Larsen's absence. I find that it was appropriatethe Judge proceeded to hear the matter under ss 122 and 124 of the Criminal ProcedureAct.[32] There is one final matter which I consider needs to be clarified. At the closeof his reply submission, Mr Larsen asserted that because there was no rebuttal fromthe Crown of his two affidavits of "Truth" and "Life", he could proceed to "travel". Ifthis signifies that Mr Larsen considers he is not subject to the laws of New Zealand ortheir administration, I wish to make it clear that there was no need for, or requirementon, the Crown to answer these affidavits. Further, Mr Larsen is subject to the laws ofNew Zealand and their administration, despite his claims of an alternative sovereignty.[33] I turn then to consider the sentence appeal.Sentence appeal[34] Although Mr Larsen did not specifically appeal against his sentence, Mr Neildfor the Police addressed the Court on the two aspects of the sentence imposed onMr Larsen. While noting that the sentence to appear if called upon was light in respectof the assault on a police officer, Mr Neild directed the Court's attention to thepenalties for a breach of s 52 of the Land Transport Act. Section 52(1)(c) has amaximum penalty of a $10,000 fine but there is no mandatory disqualification.Mr Neild acknowledged that disqualification was not available under s 52(1)(c) of the29 Larsen, above n 4.Land Transport Act but if the offence was seen to relate to road safety, disqualificationcould be made under s 80 of that Act.[35] Given the unusual circumstances which occurred on the day of the hearing,there are no notes of sentencing or record of whether the Judge made thedisqualification under s 52 or s 80 of the Land Transport Act. From the facts availableto this Court, it appears that Mr Larsen was forbidden from driving because he neededto renew his licence, not because of any traffic infringement or inappropriate orunlawful driving.[36] Although Mr Larsen eschews the Court's processes, the administration ofjustice, and the laws of New Zealand being imposed on "living sovereigns", I considerthat it is fair and just that the disqualification imposed by the District Court bequashed. As I have noted, in the District Court Judge's minute the Judge signalledthat the driving while prohibited charge is a "fineable only matter with a mandatorydisqualification period"30 and when Mr Larsen reappeared in the Court the Judgeproceeded on that basis. This was an error. Without reasons being given under s 80of the Land Transport Act that the offence involved a compromise of road safety, therewas no lawful basis to impose a six month disqualification.31[37] I find therefore that Mr Larsen's sentence appeal is successful and I quash thesix month disqualification from driving. In doing so, I want to specificallyacknowledge Mr Neild's professional and appropriate actions as a model prosecutorin these circumstances. But for his identification of the problem, Mr Larsen's sentenceappeal would not have had the same result.[38] There is, however, one matter I wish to clarify as a consequence of quashingthe period of disqualification. If Mr Larsen wishes to drive a motor-vehicle, he mustfirst obtain an appropriate driver's licence, as the law requires.30 Larsen, above n 5, at [3].31 I note that s 52A(3) of the Land Transport Act provides for an automatic six monthsdisqualification from driving, when a person has contravened s 114, for failing to stop. However,they are not the sections under which Mr Larsen was charged and convicted.Request for the transcript[39] Following the hearing, Mr Larsen made a written request to the Registry forthe transcript of the hearing. Mr Larsen gave no grounds for seeking the transcript,other than for his own records.[40] Mr Larsen's request falls to be considered under the Senior Courts (Access toCourt Documents) Rules 2017 (the Rules). Rule 9(5)(a) provides that a record of acourt proceeding in electronic form that is in the custody and control of the court maybe copied only with the permission of a Judge.[41] Rule 11 provides that in asking to access court documents, there is a strictprocess the applicant must comply with:(a) it must be a written request that identifies the person and their address,sets out sufficient particulars of the document to enable the Registrar toidentify it, gives reasons for asking to access the document which mustset out the purpose for which the access is sought, and sets out anyconditions of the right of access that the person proposes as conditionsthey would be prepared to meet;(b) the Registrar must then give a copy of the request to the parties (theJudge can dispense with that requirement);(c) if the other party wants to object to the request, they must give writtennotice of their objection setting out the ground on which they objectwithin a strict timeframe; and(d) a Judge may grant the request in whole or in part with or withoutconditions, refuse the request, or refer it to a Registrar fordetermination.[42] Rule 12 provides that in determining a request under r 11, the Judge mustconsider the nature of and the reasons given for the request, and take into account eachof the following that is relevant:(a) the orderly and fair administration of justice;(b) the right of a defendant in a criminal proceeding to a fair trial;(c) the right to bring and defend civil proceedings without the disclosureof any more information about the private lives of individuals, ormatters that are commercially sensitive, than is necessary to satisfy theprinciple of open justice;(d) the protection of other confidentiality and privacy interests (includingthose of children and other vulnerable members of the community) andany privilege held by, or available to, any person;(e) the principle of open justice (including the encouragement of fair andaccurate reporting of, and comment on, court hearings and decisions);(f) the freedom to seek, receive, and impart information;(g) whether a document to which the request relates is subject to anyrestriction under rule 7 (here it is not); and(h) any other matter that the Judge thinks appropriate.[43] In these circumstances, I am dispensing with the requirement that the Registrargive a copy of the request to Counsel for the Police and nor do I require to hear fromthe Police in these circumstances. My reasons for dispensing with this requirementare the same as those in declining Mr Larsen's request.[44] There has been no compliance by Mr Larsen with r 11 of the Rules, in that hehas given no reasons for asking to access the transcript, other than for his own records,nor has he addressed conditions for accessing the transcript that he would propose tomeet. Under r 12, I must consider the nature of and the reasons given for his requestand take into account all the factors enumerated, including the orderly and fairadministration of justice and the right of a defendant in a criminal proceeding to a fairtrial.[45] I observe that the Supreme Court in Nuku v R declined a request for a transcriptof the hearing, where Mr Nuku's reason for seeking a transcript was for the purposesof prosecuting complaints or proceedings associated with alleged wrong doings byprison and police officers at Paremoremo Prison.32 The Court of Appeal had refusedthe application because Mr Nuku's reason for seeking the transcript was not sufficient:his ability to advance his complaints was not materially affected by his having (or nothaving) a transcript.33 The Supreme Court held that there was no error in the Judge'sreasons and the miscarriage of justice ground had not been made out.34 Similarly,although there has been no reason given here, in the event Mr Larsen wished toadvance his appeal further, his ability to do so will not be affected by recourse to thetranscript of hearing.[46] I consider that the orderly and fair administration of justice does not extend toinvolving the courts administration and transcription services in unnecessary time andresource in providing transcripts in circumstances such as these. I have set out theway in which the hearing proceeded on a matter that was fraught from the outset. Nofair trial rights or need for disclosure for the purposes of defending proceedings are atplay here.[47] Accordingly, Mr Larsen's written request to the Registry for a copy of thetranscript is declined.Conclusion[48] Mr Larsen's conviction appeal is dismissed.[49] Mr Larsen's sentence appeal is upheld in part.[50] The sentence of six months disqualification on the driving while forbiddenconviction is quashed. The sentence in respect of the conviction for assault on a policeofficer remains extant.32 Nuku v R [2018] NZSC 96 at [2].33 At [2].34 At [9].[51] Mr Larsen's request for the transcript is declined.Cull JSolicitors:Crown Solicitor, Wellington for the respondent