Ali'imatafitafi v Police CA233/05 [2005] NZCA 383 (19 October 2005)

Last Updated: 21 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA233/05

BETWEEN IAO METAI ALI'IMATAFITAFI Applicant

AND NEW ZEALAND POLICE Respondent

Hearing: 20 September 2005

Court: Hammond, Chambers and Robertson JJ Counsel: Applicant in person

A M Powell for Respondent

Judgment: 19 October 2005 at 10am

_{JUDGMENT OF THE COURT}

_{Special leave to appeal is granted.}

REASONS

_{(Given by Robertson J)}

Introduction

[1] This is an application for special leave to appeal, expressed to be against conviction and sentence although the latter aspect does not arise. It is another case of an unrepresented litigant asserting that the system has failed to understand what the precise nature of his complaints have been. The legal issue before us, however, has to be whether the circumstances now complained of by Mr Ali’imatafitafi can

_{come within the provisions of s 144 of the Summary Proceedings Act 1957. This}

ALI'IMATAFITAFI V NZ POLICE CA CA233/05 19 October 2005

requires not only a question of law to arise, but one “which by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision”. The parameters of that provision were clearly enunciated by this Court in R v Slater [1997] 1 NZLR 211 and require no further elucidation here.

The factual setting

[2] Two informations were laid against Mr Ali’imatafitafi in the North Shore District Court. The first was that on 20 April 2004, in a public place namely Eskdale Road in Birkdale, he behaved in a disorderly manner that was likely, in the circumstances, to cause violence against persons (an offence against s 3 of the Summary Offences Act 1981). The second was that, on the same date at Birkdale, he resisted Grant Lesley Cann, a constable acting in the execution of his duty (an offence against s 23(a) of the same Act).

[3] At an early stage, Mr Ali’imatafitafi was advised that if he entered pleas of guilty, diversion would be available. He was adamant then that he had done nothing wrong (a position which he has consistently maintained during the ensuing months) and he rejected that option

[4] The allegation against Mr Ali’imatafitafi was that he had been at home with his son and two grandchildren, drinking alcohol and playing music loudly. A Noise Control Officer went to the property and served Mr Ali’imatafitafi with an Abatement Notice which he tore up. The Noise Control Officer returned with two police officers. They sought assistance from his son, but this merely led to further confrontation with the son arming himself with a machete.

[5] More police officers arrived and Mr Ali’imatafitafi became even more agitated and aggressive. Eventually he went into the house and returned carrying a stereo which he smashed on the road. He continued to verbally abuse the police and act in an aggressive and confrontational manner which led to his being arrested for disorderly behaviour.

[6] The son then approached the police armed with a machete and a meat cleaver. The son was eventually shot and injured by the police and he dropped the weapons he had been carrying. The police alleged that Mr Ali’imatafitafi picked up the machete and meat cleaver and began to walk away. He was warned by the police to drop the weapons and when he failed to do so he was oleoresin capsicum (O/C) sprayed by the police and taken into custody.

The Court hearings

[7] There was a defended hearing before Judge Everitt in the District Court on the North Shore on 8 September 2004 when Mr Ali’imatafitafi was represented by Mr W J Spring. Evidence was heard from four police officers, the Noise Control Officer and a civilian who lived in the vicinity.

[8] The District Court Judge found that the Noise Control Officer (Mr Pearce) who had gone to the premises did not have a Warrant of Appointment as a Noise Control Officer. Further the Judge found that, in his involvements with Mr Pearce and initially with the police, Mr Ali’imatafitafi had not behaved in a disorderly manner which was likely in the circumstances to cause violence to start against another person. The Judge found that no offending occurred up until that point.

[9] Judge Everitt went on, however, to consider what had developed thereafter when the son arrived on the scene with a machete and a cleaver. The Judge found that, when Mr Ali’imatafitafi picked up the weapons after they had been dropped by the son after he was shot, he did behave in a disorderly manner and that thereafter he did resist.

[10] On the disorderly behaviour charge Mr Ali’imatafitafi was fined $300 and on the resisting charge he was convicted and discharged.

[11] He appealed against both conviction and sentence. Before this appeal was heard, there was an appearance before Simon France J on 24 February 2005. A Minute of that date records:

[1] At the commencement of today’s appeal I raised with Mr Ali’imatafitafi difficulties concerning two of his stated grounds of appeal, which read:

4. Prosecution’s second theory of laying the same charges by another officer whose name does not appear in the Caption Sheet my defence was prepared for, and very late into the Court Hearing deprived the defendant an opportunity to prepare a defence properly.

5. The defence Barrister made his sole decision not to call for a defence statement without consultation with the defendant.

[2] I advised Mr Ali’imatafitafi that in order to successfully advance these two grounds, he would need to provide the Crown with a waiver of privilege to enable discussions with Mr Ali’imatafitafi’s trial counsel, and an affidavit to be filed. Mr Ali’imatafitafi had previously declined to do so.

[3] Mr Ali’imatafitafi has now indicated that he will provide a waiver. The appeal is adjourned to enable this to occur.

[4] To assist the parties, and particularly trial counsel, I record the relevant challenges as being:

1. that the defence was taken by surprise in that it was not appreciated that the disorderly conduct and resisting arrest charges also related to the time when Constable Cann had dealings with the appellant and in fact arrested him.

2. related to this, that Mr Ali’imatafitafi never saw the caption sheet that sets out the incident and specifically addresses Constable Cann’s role. He believes there was an earlier different caption sheet which was the only one he saw;

3. that trial counsel erred in failing to call Mr Ali’imatafitafi to testify.

[5] I direct that Mr Ali’imatafitafi should provide the waiver by Thursday, 3 March 2005. It can be given either to Mr Burns, or to trial counsel. If it is given to trial counsel, Mr Ali’imatafitafi should advise Mr Burns that he has done so. Because of uncertainty over trial counsel’s commitments, I do not timetable beyond this but a response should be filed as soon as possible. Once that is to hand no doubt Mr Burns will ensure a fixture is allocated.

[12] The case was eventually heard before Keane J on 13 April 2005. He dismissed the appeal.

The applicant’s submissions

[13] It is from that dismissal that Mr Ali’imatafitafi now seeks leave to appeal. The grounds, as he described them, were:

(a) whether the applicant was charged with disorderly behaviour after a breach of the New Zealand Bill of Rights Act 1990;

(b) whether the barrister ignored instructions for the applicant to give evidence;

(c) whether Crown evidence was inconsistent with other evidence not before the Court;

(d) whether “the late disclosure of re-indictment on the same charges ruled no case to answer earlier – only by another officer deprived the applicant of the right to prepare a proper defence”; and

(e) whether the conviction is justified when the facts giving rise to it arose out of the same facts on which the applicant’s son was charged with attempted murder but acquitted.

[14] The matter raised under (a) is Mr Ali’imatafitafi’s contention that, because the District Court Judge found there had not initially been disorderly behaviour and that he was entitled to resist the first arrest, anything which happened thereafter could not be the subject of a charge. There is clearly a question of law as to whether a person can commit further offending in such circumstances.

[15] Keane J held, in hearing the appeal:

[19] It is true that the caption sheet says that Mr Ali’imatafitafi was arrested in the first phase of the incident and does not say that he was re- arrested in the second. But he and his counsel had to be aware that the second was as relevant as the first. The evidence that he faced was not confined to the first phase only; it concludes when he was taken into custody at the end of the second.

[20] The resisting charge could only ever have related to the second. Constable Cann was not involved in the first. Moreover, Constable Cann did say in his witness statement, disclosed before the hearing, that in that second phase he had told Mr Ali’imatafitafi that he was under arrest. That could be understood to be a reference to the existing state of arrest. But Constable Cann was not privy to the first phase arrest. What he said is equally consistent with a re-arrest.

[16] The law does not provide that a prior breach by the police of the Bill of Rights (if one were established) excuses all later behaviour on that person’s behalf. This legal issue was clearly considered and determined within the particular factual circumstance, both in the District Court and in the High Court. It is not a ground for leave to be granted for a further appeal.

[17] The second and third grounds identified by Mr Ali’imatafitafi run together. Two issues arise. First, whether Mr Spring properly interpreted his client’s instructions about his giving evidence, and secondly whether there was inconsistency in the Crown evidence as to whether Mr Ali’imatafitafi picked up the machete and cleaver after his son was shot. A police officer said he had; the neighbour, Mr Taylor, said otherwise. Had Mr Ali’imatafitafi given evidence he would have denied that he had touched the weapons at that point.

[18] Although Simon France J had clearly identified counsel error as a factor, this was dealt with in a somewhat unusual way in the appeal. There was evidence before Keane J that Mr Ali’imatafitafi always wanted to give evidence and evidence from Mr Spring that he had consistently advised Mr Ali’imatafitafi against giving evidence and at the crucial time Mr Spring said that he “appeared to accept that advice”. The Judge did not make an affirmative finding as to whose account was correct, but instead decided to deal with these two points on the appeal by asking Mr Ali’imatafitafi what he would have said had he given evidence and then reaching a conclusion that it would not have made a difference.

[19] In our view, this raises a question of law concerning the appropriateness of Keane J’s response to the point being made. We would frame the question of law in the following way:

Did the High Court Judge proceed inappropriately in law or incorrectly apply the test when determining Mr Ali’imatafitafi’s complaint that his counsel had failed to seek his instructions as to whether he gave evidence or had failed to follow his instructions that he would give evidence?

[20] The fourth ground for seeking leave relates to an assertion that Mr Ali’imatafitafi and his counsel were taken by surprise in the District Court by the way in which the police ran the case. This issue was entirely fact-specific and was thoroughly investigated in the High Court. There is therefore no basis for it to be further considered on a second appeal.

[21] The fifth issue is misconceived. Whether the Crown can prove another charge against another person arising out of the overall incident cannot be relevant to the appropriateness of Mr Ali’imatafitafi’s convictions.

Conclusion

[22] Accordingly we are satisfied that there is a question of law which in terms of s 144 is of general or public importance. Leave to appeal on that issue alone in [19] above is granted.

[23] Leave to appeal having been granted as indicated, we strongly urge on Mr Ali’imatafitafi that he seek legal aid, if he is eligible, for the prosecution of this appeal. The nature of the issues raised are such that he will have grave difficulty in dealing further with this appeal himself.

Solicitors:

Crown Law Office, Wellington