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McKINNON v R [2005] NZCA 94 (4 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA240/04

THE QUEEN

v

WIREMU DEAN MCKINNON

Hearing: 19 April 2005

Court: Glazebrook, Baragwanath and Goddard JJ

Counsel: C B Hirschfeld for Appellant
J M Jelas for Crown

Judgment: 4 May 2005

JUDGMENT OF THE COURT

Appeal dismissed.
____________________________________________________________________

REASONS

(Given by Baragwanath J)

Introduction

[1] The appellant appeals against conviction in the Rotorua High Court on 12 February 2004 on a count of manufacturing a class B controlled drug methamphetamine on or about 26 September 2002 for which he was sentenced to five years imprisonment. Although he had previously been represented by counsel at a trial from which he absconded he contends that there was miscarriage of justice because the trial judge, Williams J, declined to adjourn the trial to give him a further opportunity to consult counsel or make application to Legal Services to retain counsel. We disagree.

Background

[2] The appellant’s wife was the tenant of a property in Kawaha Point Road Rotorua from 15 July 2002. The appellant was seen at the property from time to time but denied living there. On 26 September 2002 the police executed a search warrant at the property and found a number of people including the appellant in the lounge area adjacent to the kitchen where methamphetamine was in the course of preparation. His fingerprints were found on glassware used in the process.
[3] The appellant was arrested and informed of his rights under the Bill of Rights Act 1990. He expressed the wish to see a lawyer. He was taken to the Rotorua Police Station where he telephoned an experienced criminal lawyer, Mr Schultz. Asked if he wished to consult a lawyer he said he did and the arresting officer telephoned Mr Edward, another experienced criminal practitioner with whom the appellant spoke in private for some five minutes. The officer again informed him of his right to consult and instruct a lawyer without delay and in private, that he had the right to refrain from making a statement and was not obliged to say anything and that anything he did say might be taken down and used in evidence. Asked whether he wished to make a statement he declined to do so.
[4] The trial of the appellant and six co-accused was due to commence before the Chief Justice on 4 August 2003. He was represented by counsel of whom there is no suggestion that he was other than competent and fully prepared to undertake the defence. But the appellant and one of the co-accused failed to appear. Although the jury panel had been assembled, the Chief Justice adopted the merciful course first of adjourning the hearing until 7 August and then proceeding with the trial only against the five co-accused who did appear rather than continuing with the trial against the appellant and his fellow absconder in their absence. The appellant’s counsel was given leave to withdraw.
[5] The five accused who did not abscond were represented by counsel and were acquitted by the jury. The other absconder was subsequently arrested and brought to trial where he was represented by counsel. He too was acquitted.
[6] The appellant was arrested at his home on the weekend of 1-2 November 2003 and on 3 November applied to the High Court for bail. Appearing in person he confirmed that his failure to appear for trial on 4 August 2003 was deliberate. He expressed concern that he would not obtain a fair trial in Rotorua because of his gang associations which had been the subject of a judgment delivered by the Chief Justice on 13 August excluding certain evidence as to such matters. He also asserted what he called a prerogative right as a sovereign citizen of Aotearoa to be judged by his kaumatua on a marae. He said that he had been acquitted at a hearing before representatives of the Confederated Tribes of Aotearoa at Waitangi on 28 October 2003 at which no police witnesses had been present. He said that he had every respect for the law but wished to be heard by his people rather than formally through the system of law under which other citizens are treated.
[7] Harrison J said he appreciated the strength of the appellant’s views and convictions but was satisfied that if bail were allowed he would not appear at the further fixture set for 9 February 2004. He was remanded in custody.
[8] With that fixture pending the appellant had but did not adopt the option of seeking representation by the counsel who had been prepared to defend him at the 4 August fixture or by other counsel.
[9] On 4 December 2003 the appellant filed two documents, one headed "application for bail hearing" and the other "habeas corpus". On 18 December 2003 he filed a document purporting to be an order of the "Sovereign House of Parliament", or possibly a judgment of the Maori Tribunal Committee, to the effect that he was entitled to a warrant of prosecution immunity. By minute of 19 December 2003 Priestley J held that in terms of the Constitution Act 1986 and the Bail Act 2000 there could be no challenge to the bail decision of Harrison J. He described the document asserting entitlement to a warrant of prosecution as having no legal effect.
[10] Nevertheless by document received on 4 February 2004 the appellant wrote to the Registrar as follows:

...
Dear Madame,
Please register my formal request to appoint "Dan Amoto-Akarana Davis" as my official court Advocate/Counsellor in my trial scheduled in the Rotorua High Court on February 9^th 2004.
I further state and wish it officially recorded that:
I, Wiremu Kingi McKinnon, of Ngati Pikiao, Ngati Whakaue descent am not and have never been a N.Z. Citizen.
I am a sovereign member of the Maori Race who reside within the natural territories of ‘The Dominion of Aotearoa’.
As such I refuse to acknowledge the assumed authority or jurisdiction over myself by this court.
I recognise only the ‘Natural Sovereignty Authority’ of "The United Tribes of Aotearoa", they being the proprietors of the Native Aboriginal title acknowledged by King William IV of England in the Declaration of Independence 1835.
I further state:
MUNICIPAL LAW HAS NO JURISDICTION OVER INTERNATIONAL STATUTE.
I also wish this ‘declaration of sovereignty’ to be entered into the official court records regarding my forthcoming trial.
Please make copies of any previous correspondence between the court and myself available to my court advocate/counsellor upon his request. Thank you.
Yours faithfully
Wiremu Kingi McKinnon

[11] The following day at telephone conference with Crown counsel Williams J told the appellant that there are only two ways in which people can be represented in our criminal courts. One, he said, is to have a lawyer available. Those who choose not to do that can represent themselves as they are perfectly entitled to do. Some choose to have the assistance of a "McKenzie friend" being a person who can sit alongside an accused person and give advice and guidance and suggest lines of questioning, tactics and the like.

The trial

[12] On Monday 9 February 2004 a jury panel had been convened; the members of the panel apart from the 12 who would form the jury could not be discharged until commencement of the trial. Shortly after 10 am Mr Kake, described in a bench note as kaumatua and McKenzie friend, asked to be heard on the appellant’s behalf.
[13] Mr Kake addressed the Court on behalf of the appellant. He said that having taken his case to the Waitangi Parliament and been sentenced and given political immunity by the Maori Justice Court at Waitangi the appellant was apprehended by the police and taken into custody on returning to visit his family. Mr Kake submitted that there was a sovereignty issue that should be dealt with before a red robed judge in the number three courtroom at Auckland. Williams J responded:

I have certainly read all the material that you, Mr Kake, and others have filed in the Court over the past four or five months I think, largely since Mr McKinnon’s apprehension. And there is, I appreciate, the sovereignty issue that you raise, and the strength of purpose with which you advance it. We can, of course, debate the sovereignty issue but it is only fair to you to say that in an earlier case... I delivered a judgment in which, in brief, I held that the Confederation and the various statutes to which you referred – the Maori Community Development Act, the Tu Ture Whenua Maori Land Act – have no jurisdiction in relation to the trial of criminal offences. So I have already held in that case on the material available to me then, that where persons are charged, where any person in New Zealand is charged with a criminal offence, the only route available to try them is the route that Mr McKinnon has followed to this point and where, unless I can be persuaded otherwise, he will be tried here in this Court on the single charge that he faces... if I hold that this Court does have jurisdiction – notwithstanding the sovereignty issue advanced by you on behalf of the Confederation – then I need to know how the trial is to proceed and in particular whether you intend to act with Mr McKinnon and assist in his defence.

[14] Mr Kake responded that he would be acting on the appellant’s behalf as McKenzie friend. As to jurisdiction he said:

To us you have no jurisdiction... But you leave no room for us to move, Your Honour, so that we must, as a circumstance, proceed down the line as dictated by statute.

[15] The Judge replied that the sovereignty issue was an important one that will require to be settled definitively in some way at some stage but when it arises at what is a very late hour in relation to criminal proceedings it is difficult to give the issue the consideration it deserves:

So what I would propose, Mr Kake and Mr McKinnon, is that as I have said I will let you have something in writing on the sovereignty issue building on the judgment I delivered in 2000... in due course. But we really need to move on with the criminal trial and if you are prepared to assist Mr McKinnon in giving the benefit of your wisdom and guidance as a McKenzie friend I am sure he will take advantage of that.

[16] Mr Kake said that the appellant would like to seek a stay of proceedings to gather more information and also have the privilege of guidance also from other members of the judiciary.
[17] The Judge responded that while the appellant might be able to take further steps perhaps by way of appeal it was necessary to move forward in relation to the trial. Mr Kake asked "May I respectfully ask for an adjournment?" The Judge responded:

Yes, but it may take you some little time, Mr Kake, and obviously enough you will wish to speak to the kaumatua who are here. It is... about 10.30 am now. Shall we simply take an adjournment perhaps until about 11 am to give you a chance to consider your position?

[18] Mr Kake agreed. The Court adjourned until 11 am. At 11.15 am Mr Kake made a speech on behalf of the Confederation and asked that the appellant be released into the custody of the Confederation. The Judge responded that he appreciated the sincerity of Mr Kake’s views and those of his supporters and kaumatua but he was unable to accede to the request to release the appellant into his custody and that the trial must proceed. Mr Kake thanked the Judge for his deliberation and said:

We seek also an adjournment on the ground that we still have not had an opportunity to form a defence. I am a McKenzie friend of course, but Mr Wiremu Kingi McKinnon has chosen to defend himself – as is his right – and gather information, further information for a trial, hopefully to be set for a later date. We seek that from you today. Kia ora.

[19] The appellant added that there were letters from the Ministers for Courts and of Maori Affairs and that Parliament was taking these matters into consideration and he sought a stay of proceedings as these issues needed to be dealt with before he went to trial. He said:

Also I am not prepared to go to trial in that I am representing myself on the sovereignty issue mostly. I have had no opportunity to form a criminal defence against the charge and really if the trial proceeds, if you decide that the trial must go on then basically there is no defence that I am prepared to put forward and basically the trial will proceed without me in that case because there is no defence. I have been preparing my defence on the grounds that I believe the sovereignty issue to be of paramount importance in this case and that is my position for an adjournment. But forming a decent defence on my behalf is very well nigh on impossible while on remand.

[20] Crown counsel’s response referred to the history of the previous trial and the appellant’s having counsel for that date but electing not to attend. The appellant responded "I chose not to appear at that trial." He referred to appearing on Friday 1 November at Waitangi, asserting that the Maori people had the right to form a justice system for themselves. He said he did not abscond from the trial but just took an alternative route to justice. The Judge responded:

I understand the submissions you are making but I am not prepared to adjourn the trial on the arguments you have put forward. This matter has as [Crown counsel] points out been in the system since September 2002 and you were due to be tried before the Chief Justice in... early August last year... Up to that point, at least, you had counsel acting for you and must have discussed your defence with him. For reasons outlined by you, you chose not to appear at the trial before the Chief Justice. She delayed the start of the trial for several days to try and ensure your appearance and that of your brother. That did not occur and the trial proceeded. You have known now for a considerable period of time that the trial will commence here today, 9 February 2004.
While I understand that you are relying on the sovereignty issue addressed by yourself and the kaumatua this morning, it would not have been difficult to prepare an alternative defence to the facts of the matter. You must have at least considered that there was a possibility that this Court would decline to accept the sovereignty argument and direct you to be tried in accordance with the Crimes Act 1961 and the Misuse of Drugs Act 1975.
The facts of this matter are comparatively straightforward. It is not an especially complex or difficult trial, setting aside the sovereignty issue. You now have the advantage of Mr Kake who is prepared to act as your McKenzie friend, and there has been no previous indication that you would be unprepared for the fixture this morning – leaving aside, as I said, the sovereignty issue. I appreciate... that some of your papers have not yet arrived from Waikeria and you want some material from the earlier stages of the process. That material can be made available. The Waikeria material is on the way, I understand. If you can identify precisely what is off the file relating to the previous trial, copies can be made available to you, as I indicated in the conference last Thursday. So the system has done all it can and it is prepared to do more if you can identify what you want. But I am not prepared to adjourn the trial. The trial will proceed and the jury will be empanelled shortly unless there is anything you want put forward on your own behalf.

The appellant responded:

I would just like to reiterate that I have no defence for this charge. My McKenzie friend is not a legal counsel nor with any legal experience to defend me in this trial. If you decide to go ahead with the trial then I prefer not to be here. The trial can proceed without me because I feel it is not fair on me. It is not giving me a fair and just opportunity to be represented. They are my arguments, and I will also appeal against your decision for the reasons stated and I feel like I am just being railroaded through the system with no consideration being given to the jurisdiction that our flag represents the sovereign nation of Aotearoa. I do not recognise myself as a New Zealand citizen. I am a sovereign individual belonging to the Maori Nation of Aotearoa and once again this Court has proven itself to be unjust towards our people and that is my stand now, Your Honour.

[21] The Judge said that he understood the appellant’s position and that he would deliver a judgment on the sovereignty point as soon as possible. But it was necessary to move on with the trial. He enquired whether Mr Kake wished to be heard. Mr Kake said that he supported the appellant’s application for adjournment on the grounds that Mr Davis, the representative and advocate for the Confederation of the Courts, had the qualification to speak in the appellant’s defence but he was unable through sickness to be present and added that ground to the application for an adjournment. The Judge replied that he respected that view but the appellant had told him at the pre-trial telephone conference that he had not spoken to Mr Davis and did not expect to be able to speak with him until the morning of the hearing. The Judge had arranged with the court staff that as soon as Mr Davis appeared he was to be given access to speak with Mr McKinnon so that they could discuss the case. When the Judge learned on the morning of the hearing that Mr Davis was unable to be present he asked the court and prison staff to ensure that Mr Kake had the opportunity to discuss the matter with Mr McKinnon. He said that there had been every opportunity given for the appellant to prepare himself for the trial and directed that it proceed.
[22] Following protest by the appellant and a haka by other persons present the Judge asked the jury panel to enter the court and at 11.55 am the indictment was presented. In his response the appellant said that he pleaded previous acquittal by the Maori Court of Aotearoa on the anniversary of the Declaration of Independence. He said this trial had been held at Waitangi before eighty kaumatua, leaders of their individual tribes. He said that he wished it be known to the jury that the trial should not be proceeding. It was he said a direct contravention of Maori sovereign rights.
[23] The Judge directed that a plea of not guilty be entered. Crown counsel announced his appearance and the appellant said that he made no plea. The Judge informed the appellant of his right to challenge members of the jury panel whose names were called. The appellant sought to question prospective jurors whether they believed in the Declaration of Independence. The Judge directed that he was not entitled to address members of the panel. Following empanelling the Judge invited the jury to retire to select their foreman. The Crown opened its case at 12.20 pm and the trial proceeded.
[24] No criticism was made of the fairness of the trial. The appellant’s defence was that, living away from the premises, he had happened to visit them shortly before the warrant was executed by the police and found that the persons present were engaged in methamphetamine manufacture to which he was not party. The appellant cross-examined effectively the caretaker of the property with whom Mrs McKinnon had made the rental arrangements. The Judge maintained close control over the evidence adduced by the Crown, excluding a notebook found in a vehicle outside the premises which contained a list of items that could be used in the manufacture of methamphetamine. The Judge permitted not only the appellant but Mr Kake and a second McKenzie friend to cross-examine.
[25] On day four at the conclusion of the Crown case, the appellant opened his case. He produced with the Crown’s consent the brief of a constable recording the appellant’s discussion with his children shortly after his arrest. A detective sergeant called for the defence established the arrival at the premises and subsequent departure from them by one Ryder shortly before the execution of the warrant and his account of having just arrived from a powhiri at the marae to welcome a visiting Australian rugby team. He then called a brother of the appellant who organised the powhiri. He described the appellant’s presence at the marae and said he later returned to the Kawaha Point Road premises only three to five minutes before the police arrived.
[26] No challenge was made to the Judge’s summing up or to the verdict save on the grounds of the Judge’s refusal to adjourn the trial.

Submissions

[27] Mr Hirschfeld submitted that the Judge did not give the appellant a proper opportunity to consult counsel or to make application to let the Legal Services Agency to provide counsel. He relied on three important rights conferred by the New Zealand Bill of Rights Act 1990 on persons charged:

24 Rights of persons charged
Everyone who is charged with an offence--
...
(c) Shall have the right to consult and instruct a lawyer; and
(d) Shall have the right to adequate time and facilities to prepare a defence; and
...
(f) Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance;...

[28] He cited observations of Richardson J in R v Barlow (1995) 14 CRNZ 9, 31:

Rights under s 24 have continuing effect in the same way and for the same reasons. The right to adequate time and facilities to prepare a defence (para (d)) and the right to receive legal assistance (para (f)) are obviously in that category. So too is the right to consult and instruct a lawyer (para (c)). While for convenience (c) and (d) are listed separately, they operate compendiously as they do under art 14.3(b) of the International Covenant which guarantees the right "to have adequate time and facilities for preparation of his defence and to communicate with counsel of his own choosing". They are all directed to the same end, the effective representation of one’s interest from charge, during the pretrial process, preparing for trial, and at the ensuring trial.

And at p 38:

The right to a lawyer recognises the reality that an individual charged with an offence is ordinarily at a significant disadvantage in dealing with agents of the prosecution. Recourse to a lawyer is a means of redressing that imbalance by providing access to knowledge of the criminal processes, support in preparing any defence, advice as to whether to speak about the case to the police or to others, and representation by an independent intermediary. It allows the accused to make informed decisions about the case.

[29] He cited the decision of the Court in R v Ru (2001) 19 CRNZ 447, 451-2:

[20] We are not unsympathetic to the pressures which District Courts find themselves facing daily and the frustration at the possibility of an adjournment. There are however clear legislative directions in this area (eg ss 24(c) and (d) and 25(e) and (f) of the New Zealand Bill of Rights Act 1990; s 10 of the Criminal Justice Act 1985). Moving work and disposing of cases are important factors but guaranteeing a fair trial can never be compromised.
[21] Where as here the Judge was persuaded that he should grant counsel leave to withdraw, we are of the view that there was a clear obligation to provide the accused (then appearing for himself) an opportunity for an adjournment to obtain alternative counsel or at least to marshal his forces and to be ready to represent himself in the Court.
...
[28] Although no accused person should imagine that they can with impunity fail to take steps to protect themselves by undertaking adequate preparation for trial, or to summarily dismiss counsel immediately before a trial starts as a ploy to obtain an adjournment, the Court must still be vigilant to ensure that a person who is convicted has been found guilty at the end of a process which has integrity and the hallmarks of fairness.

[30] Other New Zealand cases cited were R v Shaw [1992] 1 NZLR 652; Smith v R HC INV AP28/93 25 November 1993; R v Montalk CA66/98 25 June 1998 and R v Hill [2004] 2 NZLR 145, in each of which the conviction was set aside because refusal of adjournment had led to injustice.
[31] He cited in addition North American authority, including the US decisions Johnson v Zerbst [1938] USSC 145; 304 U.S. 458 (1938) at 462-4; Gideon v Wainwright 372 U.S. 335 (1963); Argersinger v Hamlin [1972] USSC 128; 407 U.S. 25 (1972); Alabama v Shelton 535 U.S.654 (2002); and Iowa v Tovar [2004] USSC 94; 541 U.S. 77 (2004). Those cases turned on the 6^th Amendment which states:

In all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defence.

They held that it secures to a defendant who faces imprisonment the right to counsel at all critical stages of the criminal process and that he must be made aware of the dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing; that absent a knowing and intelligent waiver, no one may be imprisoned for any offence unless he was represented by counsel at trial.

[32] Underlying these rules is the policy stated by Black J in Gideon at 805-6:

Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step of the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

[33] Mr Hirschfeld also cited Canadian authority which recognises that policy, including the decision of the British Columbia Court of Appeal in R v Johnson (1974) 11 C.C.C. (2d) 101. There the appellant had been represented by counsel at the preliminary hearing and at the opening of his trial differences arose between him and his counsel and before the trial began counsel asked for and was granted leave to withdraw. The appellant attempted to engage another counsel but counsel of his choice was unavailable because of other commitments to appear. The Judge ordered the trial to proceed and the unrepresented appellant was convicted of two charges of breaking and entering. Bull J.A. stated:

10 I fully appreciate the problem facing our courts, so sadly overburdened and understaffed, in their efforts to keep abreast of the continuous flow of cases on their calendars, and the understandable annoyance engendered, as well as the firmness that must be exercised, when adjournments are requested at the last moment. But, at the same time, situations as here do arise from time to time, and where the liberty of the subject is at stake, great care must always be taken to ensure that an accused, who has not offended in any way or been dilatory, and is not merely exercising delaying or obstructing tactics, is not forced into the position of a possibly inadequate defence because of failure to have counsel (whether of his choice or not) when he so desires. In this case there was no suggestion of any fault in the appellant not having done, or attempted to do, everything he could to retain and have present a lawyer to replace his discharged counsel. Again, there has not been the slightest suggestion that either the discharge of that counsel or the application for an adjournment to have his new counsel present was for any purpose of delay or was questionably motivated... It would seem from what he said that the learned Judge’s determination from the outset that there would be no adjournment was because the appellant had had ample notice of the trial date. But I feel that it was overlooked, unfortunately, that the appellant had had a counsel up to a few moments before the commencement of the trial and that it was only then that the emergent situation arose. In my view, under the particular circumstances which had suddenly arisen, more consideration should have been given to the appellant’s application and problems and his right to make full answer and defence through the services of a lawyer that he wanted and had engaged.

The appeal was allowed.

[34] He also cited R v Norris (1993) 62 O.A.C. 397 where a very complex trial involving a number of difficult factual and legal issues had been due to commence on 4 September 1991. The appellant had initially intended to proceed without counsel but when strongly advised by the trial judge that he was not capable of representing himself he agreed that he should have counsel and told the Court that counsel to whom he had spoken could not act because of the imminent trial. On 4 September the appellant applied for a sixty day adjournment to enable him to have counsel defend him. He told the Court the previous day he had retained counsel but because counsel had a prior engagement he could not be present that day. The trial judge said that the appellant had known for a considerable time that he would require other counsel and declined to accede to the request for adjournment. He said that the accused had had ample opportunity to be prepared to proceed with the trial and that to grant the adjournment would be an abuse of process of the administration of the Court and of justice. He added that the number of jury panel assembled, the witnesses assembled and all of the difficulties in the trial were amply before the accused months and months previously and declined the adjournment. The Judge made no specific finding that the appellant’s discharge of his counsel and failure to retain one were done with the intent of delaying the process of the Court.
[35] The Court of Appeal recognised the inconvenience which an adjournment on 4 September would have caused the Court, jurors and witnesses but it held that representation by counsel is generally essential to a fair trial and that where an accused person desires to be defended by counsel unless he has deliberately failed to retain counsel or has discharged counsel with the intent of delaying the process of the Court the Court should afford him reasonable opportunity to retain counsel. The appeal was allowed and conviction set aside.
[36] Mr Hirschfeld submitted that in Canada trial judges are more willing to assist unrepresented accused than is the New Zealand practice: R v Welsh [1996] O.T.C. 195 where:

The trial Judge assisted the appellant in his questioning of two defence witnesses and allowed the appellant significant latitude in his questioning of the defence witnesses rejecting the Crown’s objection to an improper line of questioning.

Accordingly, he submitted, the Canadian authority as to the precautions to be taken to provide representation should apply a fortiori.

[37] For the Crown Ms Jelas cited the following passage from R v Hill:

[42] There is no dispute that every application for an adjournment is to be considered on its own facts. The mere fact that a refusal of an adjournment may result in the withdrawal of counsel leaving the accused unrepresented is not, by itself, a ground for an adjournment: R v West [1960] NZLR 555 (CA). The Court is entitled to have regard to whether an accused may be seeking to manipulate the system by unco-operative behaviour and may also have regard to the public interest in the prompt and efficient administration of justice. In the end, however, the fundamental requirement must be that the accused receives a fair trial. Where the refusal of an adjournment might have given rise to the substantial possibility of a miscarriage of justice, a retrial may be ordered: R v Ru (2001) 19 CRNZ 447 at paragraph [14].
[43] We are satisfied that Mr Hill’s dilemma arose entirely from his own conduct in declining, on the eve of his trial, to have Mr Mason act on his behalf as his assigned counsel when he was willing and able to do so. It may be that Mr Hill was not as well served by representing himself as he would have been had he accepted assigned counsel to act on his behalf. However... we are not persuaded that there is any real possibility of a miscarriage of justice having occurred as a result. The trial Judge was quite entitled to have regard to the delay before a new trial could occur and to the cost and inconvenience to the Crown by delaying the trial when witnesses had been briefed and were standing by to give evidence.

[38] She submitted that it was open to the trial judge to take the view that the appellant had had sufficient opportunity to instruct new counsel, and late application for an adjournment was an attempt to further delay his trial and manipulate the system. He had initially had trial counsel who had appeared at pre-trial hearings. He chose to withdraw his instructions and then took no steps to instruct new counsel despite having many months to do so. She submitted that it is important for an accused person such as the appellant when attempting to "play the system" that the right to instruct counsel must carry with it the responsibility by an accused to make timely arrangements as to his or her representation at trial. If the right to instruct counsel would prevail over the responsibility to exercise that right in a reasonable way the trial process would be placed at risk of being perverted. Control over the criminal trial process must ultimately remain with the trial Judge who is able to consider all the facets of fairness.

Discussion

[39] A trial must always be fair. But while the public interest and that of the accused that he be tried in a just proceeding is non-negotiable other interests are engaged as well as those of the accused. Important among them is the due administration of justice. Major elements in it were availed of by the accused in this case. At his first trial he was represented by counsel. A jury panel was assembled to afford him and his co-accused the opportunity of presenting challenges to the composition of the jury before being tried by it before an independent judge. When the appellant failed to appear the hearing was adjourned to give him the opportunity of changing his mind but he elected not to do so. Following his arrest he had the opportunity between 3 November and 9 February to reinstruct his original counsel or obtain fresh counsel. Having had the opportunity to take legal advice as to the merits of his challenge to the jurisdiction he wrote the document reproduced in para [10] above, taking the stance that he did not recognise the authority of the Court. He took no steps to secure representation against the inevitability that his challenge would fail.
[40] The appellant is not an ignorant man. Immediately upon his original arrest he expressed the wish to see a lawyer and consulted first Mr Schulz then Mr Edward. Each would have informed him if asked of the lack of merit of his jurisdictional challenge.
[41] Mr Hirschfeld’s narrow submission was that on the day of the trial the Judge should have granted an adjournment for the appellant to consult counsel or make application to the Legal Services agency to retain counsel. Either option would have entailed delay while new counsel took instructions.
[42] A Judge’s responsibility faced with such a situation is to examine the particular circumstances and to make an informed discretionary judgment. The exercise of discretion will not be interfered with on appeal unless it proceeds on an erroneous basis or is wholly wrong, thereby risking injustice. A factor of prime although not decisive importance was the appellant’s deliberate decision not to appear at the previous trial and without notifying the Court of his intention not to appear. There had as a result been waste of the time of the original jury panel and witnesses, of the Court and of counsel. Now the appellant wished to repeat the exercise by keeping the second jury panel and witnesses waiting while he found counsel.
[43] In R v Hill this Court distinguished sharply between Hill, who had deliberately courted the position where he lacked representation, and his co-accused who, like West, Ru, Montalk, Shaw and Smith, wished at all material times to be represented. The same can be said of the appellant in the Canadian case of Johnson. We find it unnecessary to consider whether there is material difference between New Zealand and Canadian practice.
[44] The due exercise of discretion will depend on all the circumstances. In the Canadian case of Norris the complexity of the trial and legitimate reasons for differences with his previous counsel, coupled with the appellant’s expressed desire a fortnight before it started to secure new representation, were enough to persuade the Court of Appeal that he should not have been forced on.
[45] But in recent times the Courts of New Zealand and England have made clear that accused persons who seek to manipulate or evade court processes are unlikely to succeed. We described the Chief Justice’s course of proceeding with the trial against the five co-accused who did appear as a merciful one. It would have been open to her to adopt the alternative course of proceeding in the absence of the absconders.
[46] The alternative course of proceeding in the absence of absconders has been endorsed by the House of Lords in R v Jones (Anthony) [2003] 1 AC 1 which has been followed in New Zealand. The authorities include R v Hika [1986] 2 CRNZ 245; R v Sthmer HC WN T.106401 17 June 2003; R v Williams HC AK CRI-2003-404-025445 8 September 2004; R v Howie & Ors (No 4) HC CHCH CRI-2004-009-003526 21 September 2004 and R v McFall HC HAM T.20514 7 April 2005. Those decisions are consistent with the judgment of this Court in R v van Yzendoorn [2002] 3 NZLR 758.
[47] Had that course been adopted, while this Court would have examined with care the fairness of the trial it would not have doubted the High Court’s jurisdiction to proceed in the absence of the absconders.
[48] This was not a complex case and the appellant’s defence was clearly before the jury; we repeat that there was no challenge to the summing up or to the verdict save on the grounds of the Judge’s refusal to adjourn. Nowadays the Courts respect the exercise of free will – whether to decline to undergo surgery, to plead guilty or to elect to appear without counsel. While the Court will always give careful consideration to how it may mollify the consequences of an unwise decision it will be reluctant to allow other important interests to be overridden by a last minute change of mind unless injustice will result.
[49] We are satisfied that the appellant well knew what he was doing at every stage of this case and must, like any other accused who elects to defend himself, accept the consequences.
[50] The appeal is accordingly dismissed.

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[2]	The appellant’s wife was the tenant of a property in Kawaha Point Road Rotorua from 15 July 2002. The appellant was seen at the property from time to time but denied living there. On 26 September 2002 the police executed a search warrant at the property and found a number of people including the appellant in the lounge area adjacent to the kitchen where methamphetamine was in the course of preparation. His fingerprints were found on glassware used in the process.
[3]	The appellant was arrested and informed of his rights under the Bill of Rights Act 1990. He expressed the wish to see a lawyer. He was taken to the Rotorua Police Station where he telephoned an experienced criminal lawyer, Mr Schultz. Asked if he wished to consult a lawyer he said he did and the arresting officer telephoned Mr Edward, another experienced criminal practitioner with whom the appellant spoke in private for some five minutes. The officer again informed him of his right to consult and instruct a lawyer without delay and in private, that he had the right to refrain from making a statement and was not obliged to say anything and that anything he did say might be taken down and used in evidence. Asked whether he wished to make a statement he declined to do so.
[4]	The trial of the appellant and six co-accused was due to commence before the Chief Justice on 4 August 2003. He was represented by counsel of whom there is no suggestion that he was other than competent and fully prepared to undertake the defence. But the appellant and one of the co-accused failed to appear. Although the jury panel had been assembled, the Chief Justice adopted the merciful course first of adjourning the hearing until 7 August and then proceeding with the trial only against the five co-accused who did appear rather than continuing with the trial against the appellant and his fellow absconder in their absence. The appellant’s counsel was given leave to withdraw.
[5]	The five accused who did not abscond were represented by counsel and were acquitted by the jury. The other absconder was subsequently arrested and brought to trial where he was represented by counsel. He too was acquitted.
[6]	The appellant was arrested at his home on the weekend of 1-2 November 2003 and on 3 November applied to the High Court for bail. Appearing in person he confirmed that his failure to appear for trial on 4 August 2003 was deliberate. He expressed concern that he would not obtain a fair trial in Rotorua because of his gang associations which had been the subject of a judgment delivered by the Chief Justice on 13 August excluding certain evidence as to such matters. He also asserted what he called a prerogative right as a sovereign citizen of Aotearoa to be judged by his kaumatua on a marae. He said that he had been acquitted at a hearing before representatives of the Confederated Tribes of Aotearoa at Waitangi on 28 October 2003 at which no police witnesses had been present. He said that he had every respect for the law but wished to be heard by his people rather than formally through the system of law under which other citizens are treated.
[7]	Harrison J said he appreciated the strength of the appellant’s views and convictions but was satisfied that if bail were allowed he would not appear at the further fixture set for 9 February 2004. He was remanded in custody.
[8]	With that fixture pending the appellant had but did not adopt the option of seeking representation by the counsel who had been prepared to defend him at the 4 August fixture or by other counsel.
[9]	On 4 December 2003 the appellant filed two documents, one headed "application for bail hearing" and the other "habeas corpus". On 18 December 2003 he filed a document purporting to be an order of the "Sovereign House of Parliament", or possibly a judgment of the Maori Tribunal Committee, to the effect that he was entitled to a warrant of prosecution immunity. By minute of 19 December 2003 Priestley J held that in terms of the Constitution Act 1986 and the Bail Act 2000 there could be no challenge to the bail decision of Harrison J. He described the document asserting entitlement to a warrant of prosecution as having no legal effect.
[10]	Nevertheless by document received on 4 February 2004 the appellant wrote to the Registrar as follows:

[16]	Mr Kake said that the appellant would like to seek a stay of proceedings to gather more information and also have the privilege of guidance also from other members of the judiciary.
[17]	The Judge responded that while the appellant might be able to take further steps perhaps by way of appeal it was necessary to move forward in relation to the trial. Mr Kake asked "May I respectfully ask for an adjournment?" The Judge responded:

[21]	The Judge said that he understood the appellant’s position and that he would deliver a judgment on the sovereignty point as soon as possible. But it was necessary to move on with the trial. He enquired whether Mr Kake wished to be heard. Mr Kake said that he supported the appellant’s application for adjournment on the grounds that Mr Davis, the representative and advocate for the Confederation of the Courts, had the qualification to speak in the appellant’s defence but he was unable through sickness to be present and added that ground to the application for an adjournment. The Judge replied that he respected that view but the appellant had told him at the pre-trial telephone conference that he had not spoken to Mr Davis and did not expect to be able to speak with him until the morning of the hearing. The Judge had arranged with the court staff that as soon as Mr Davis appeared he was to be given access to speak with Mr McKinnon so that they could discuss the case. When the Judge learned on the morning of the hearing that Mr Davis was unable to be present he asked the court and prison staff to ensure that Mr Kake had the opportunity to discuss the matter with Mr McKinnon. He said that there had been every opportunity given for the appellant to prepare himself for the trial and directed that it proceed.
[22]	Following protest by the appellant and a haka by other persons present the Judge asked the jury panel to enter the court and at 11.55 am the indictment was presented. In his response the appellant said that he pleaded previous acquittal by the Maori Court of Aotearoa on the anniversary of the Declaration of Independence. He said this trial had been held at Waitangi before eighty kaumatua, leaders of their individual tribes. He said that he wished it be known to the jury that the trial should not be proceeding. It was he said a direct contravention of Maori sovereign rights.
[23]	The Judge directed that a plea of not guilty be entered. Crown counsel announced his appearance and the appellant said that he made no plea. The Judge informed the appellant of his right to challenge members of the jury panel whose names were called. The appellant sought to question prospective jurors whether they believed in the Declaration of Independence. The Judge directed that he was not entitled to address members of the panel. Following empanelling the Judge invited the jury to retire to select their foreman. The Crown opened its case at 12.20 pm and the trial proceeded.
[24]	No criticism was made of the fairness of the trial. The appellant’s defence was that, living away from the premises, he had happened to visit them shortly before the warrant was executed by the police and found that the persons present were engaged in methamphetamine manufacture to which he was not party. The appellant cross-examined effectively the caretaker of the property with whom Mrs McKinnon had made the rental arrangements. The Judge maintained close control over the evidence adduced by the Crown, excluding a notebook found in a vehicle outside the premises which contained a list of items that could be used in the manufacture of methamphetamine. The Judge permitted not only the appellant but Mr Kake and a second McKenzie friend to cross-examine.
[25]	On day four at the conclusion of the Crown case, the appellant opened his case. He produced with the Crown’s consent the brief of a constable recording the appellant’s discussion with his children shortly after his arrest. A detective sergeant called for the defence established the arrival at the premises and subsequent departure from them by one Ryder shortly before the execution of the warrant and his account of having just arrived from a powhiri at the marae to welcome a visiting Australian rugby team. He then called a brother of the appellant who organised the powhiri. He described the appellant’s presence at the marae and said he later returned to the Kawaha Point Road premises only three to five minutes before the police arrived.
[26]	No challenge was made to the Judge’s summing up or to the verdict save on the grounds of the Judge’s refusal to adjourn the trial.

[30]	Other New Zealand cases cited were R v Shaw [1992] 1 NZLR 652; Smith v R HC INV AP28/93 25 November 1993; R v Montalk CA66/98 25 June 1998 and R v Hill [2004] 2 NZLR 145, in each of which the conviction was set aside because refusal of adjournment had led to injustice.
[31]	He cited in addition North American authority, including the US decisions Johnson v Zerbst [1938] USSC 145; 304 U.S. 458 (1938) at 462-4; Gideon v Wainwright 372 U.S. 335 (1963); Argersinger v Hamlin [1972] USSC 128; 407 U.S. 25 (1972); Alabama v Shelton 535 U.S.654 (2002); and Iowa v Tovar [2004] USSC 94; 541 U.S. 77 (2004). Those cases turned on the 6^th Amendment which states:

[34]	He also cited R v Norris (1993) 62 O.A.C. 397 where a very complex trial involving a number of difficult factual and legal issues had been due to commence on 4 September 1991. The appellant had initially intended to proceed without counsel but when strongly advised by the trial judge that he was not capable of representing himself he agreed that he should have counsel and told the Court that counsel to whom he had spoken could not act because of the imminent trial. On 4 September the appellant applied for a sixty day adjournment to enable him to have counsel defend him. He told the Court the previous day he had retained counsel but because counsel had a prior engagement he could not be present that day. The trial judge said that the appellant had known for a considerable time that he would require other counsel and declined to accede to the request for adjournment. He said that the accused had had ample opportunity to be prepared to proceed with the trial and that to grant the adjournment would be an abuse of process of the administration of the Court and of justice. He added that the number of jury panel assembled, the witnesses assembled and all of the difficulties in the trial were amply before the accused months and months previously and declined the adjournment. The Judge made no specific finding that the appellant’s discharge of his counsel and failure to retain one were done with the intent of delaying the process of the Court.
[35]	The Court of Appeal recognised the inconvenience which an adjournment on 4 September would have caused the Court, jurors and witnesses but it held that representation by counsel is generally essential to a fair trial and that where an accused person desires to be defended by counsel unless he has deliberately failed to retain counsel or has discharged counsel with the intent of delaying the process of the Court the Court should afford him reasonable opportunity to retain counsel. The appeal was allowed and conviction set aside.
[36]	Mr Hirschfeld submitted that in Canada trial judges are more willing to assist unrepresented accused than is the New Zealand practice: R v Welsh [1996] O.T.C. 195 where:

[39]	A trial must always be fair. But while the public interest and that of the accused that he be tried in a just proceeding is non-negotiable other interests are engaged as well as those of the accused. Important among them is the due administration of justice. Major elements in it were availed of by the accused in this case. At his first trial he was represented by counsel. A jury panel was assembled to afford him and his co-accused the opportunity of presenting challenges to the composition of the jury before being tried by it before an independent judge. When the appellant failed to appear the hearing was adjourned to give him the opportunity of changing his mind but he elected not to do so. Following his arrest he had the opportunity between 3 November and 9 February to reinstruct his original counsel or obtain fresh counsel. Having had the opportunity to take legal advice as to the merits of his challenge to the jurisdiction he wrote the document reproduced in para [10] above, taking the stance that he did not recognise the authority of the Court. He took no steps to secure representation against the inevitability that his challenge would fail.
[40]	The appellant is not an ignorant man. Immediately upon his original arrest he expressed the wish to see a lawyer and consulted first Mr Schulz then Mr Edward. Each would have informed him if asked of the lack of merit of his jurisdictional challenge.
[41]	Mr Hirschfeld’s narrow submission was that on the day of the trial the Judge should have granted an adjournment for the appellant to consult counsel or make application to the Legal Services agency to retain counsel. Either option would have entailed delay while new counsel took instructions.
[42]	A Judge’s responsibility faced with such a situation is to examine the particular circumstances and to make an informed discretionary judgment. The exercise of discretion will not be interfered with on appeal unless it proceeds on an erroneous basis or is wholly wrong, thereby risking injustice. A factor of prime although not decisive importance was the appellant’s deliberate decision not to appear at the previous trial and without notifying the Court of his intention not to appear. There had as a result been waste of the time of the original jury panel and witnesses, of the Court and of counsel. Now the appellant wished to repeat the exercise by keeping the second jury panel and witnesses waiting while he found counsel.
[43]	In R v Hill this Court distinguished sharply between Hill, who had deliberately courted the position where he lacked representation, and his co-accused who, like West, Ru, Montalk, Shaw and Smith, wished at all material times to be represented. The same can be said of the appellant in the Canadian case of Johnson. We find it unnecessary to consider whether there is material difference between New Zealand and Canadian practice.
[44]	The due exercise of discretion will depend on all the circumstances. In the Canadian case of Norris the complexity of the trial and legitimate reasons for differences with his previous counsel, coupled with the appellant’s expressed desire a fortnight before it started to secure new representation, were enough to persuade the Court of Appeal that he should not have been forced on.
[45]	But in recent times the Courts of New Zealand and England have made clear that accused persons who seek to manipulate or evade court processes are unlikely to succeed. We described the Chief Justice’s course of proceeding with the trial against the five co-accused who did appear as a merciful one. It would have been open to her to adopt the alternative course of proceeding in the absence of the absconders.
[46]	The alternative course of proceeding in the absence of absconders has been endorsed by the House of Lords in R v Jones (Anthony) [2003] 1 AC 1 which has been followed in New Zealand. The authorities include R v Hika [1986] 2 CRNZ 245; R v Sthmer HC WN T.106401 17 June 2003; R v Williams HC AK CRI-2003-404-025445 8 September 2004; R v Howie & Ors (No 4) HC CHCH CRI-2004-009-003526 21 September 2004 and R v McFall HC HAM T.20514 7 April 2005. Those decisions are consistent with the judgment of this Court in R v van Yzendoorn [2002] 3 NZLR 758.
[47]	Had that course been adopted, while this Court would have examined with care the fairness of the trial it would not have doubted the High Court’s jurisdiction to proceed in the absence of the absconders.
[48]	This was not a complex case and the appellant’s defence was clearly before the jury; we repeat that there was no challenge to the summing up or to the verdict save on the grounds of the Judge’s refusal to adjourn. Nowadays the Courts respect the exercise of free will – whether to decline to undergo surgery, to plead guilty or to elect to appear without counsel. While the Court will always give careful consideration to how it may mollify the consequences of an unwise decision it will be reluctant to allow other important interests to be overridden by a last minute change of mind unless injustice will result.
[49]	We are satisfied that the appellant well knew what he was doing at every stage of this case and must, like any other accused who elects to defend himself, accept the consequences.
[50]	The appeal is accordingly dismissed.