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Court of Appeal of New Zealand |
Last Updated: 21 March 2015
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
9 September 2014 |
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Court: |
Ellen France P, MacKenzie and Andrews JJ |
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Counsel: |
Appellant in person
M J Lillico for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France
P)
Introduction
[1] The appellant, Jacobus van der Lubbe, was convicted after a jury trial of one count of threatening to do grievous bodily harm and one count of threatening to kill. Both charges relate to the same complainant. Mr van der Lubbe was fined $1,000 on each count by the trial Judge, Judge Cameron.[1] He appeals against conviction and sentence.
[2] The focus of the conviction appeal is on various ways in which Mr van der Lubbe says the trial Judge was biased against him so as to give rise to a miscarriage of justice. Mr van der Lubbe says the sentence is manifestly excessive. We deal with the conviction and sentence appeals after setting out the background.
Background – a dispute between neighbours
[3] Mr van der Lubbe and his neighbour, Mr Poynter, live in Wanganui. Mr Poynter in his evidence said that part of his property was residential but “a good 85%” was rural. Mr van der Lubbe told us the properties were residential with a rural aspect.
[4] As Judge Cameron said in sentencing, the background to the charges lies in Mr van der Lubbe’s ongoing dispute with Mr Poynter about Mr Poynter’s use of firearms on Mr Poynter’s property.[2] As a means of trying to resolve the dispute, an agreement was made whereby Mr Poynter would advise the police when he was about to use his firearms.
[5] The Crown case was that on 3 August 2011, Mr Poynter advised the police of his intention to use a firearm. Mr van der Lubbe was not advised. Mr Poynter used his firearm. Mr van der Lubbe made a 111 call reporting the use of the firearm next door. When Mr van der Lubbe was told the police had been advised Mr Poynter was going to use his firearm, the following exchange took place:
VDL That I am going to carry out my threat now, I am going [Mr van to buy my own firearm and I am going to use it to disable
der Lubbe] my neighbour.
Comms Well why would you do that?
VDL Because, I, I’ve warned the Police already
Comms Yes.
VDL and that’s what I’m going to do. You just convey that message to the Police in Whanganui, that’s what I’m going to do, alright?
Comms Okay, so you want to spend the rest of your life in jail just because someone’s
VDL That doesn’t worry me, that doesn’t worry me, I’m sixty now and I’ve had a gutsful, I am going to buy a firearm and I’m going to use it to disable my neighbour, okay. Goodbye.
[6] A similar set of events occurred on 23 August 2011. Mr Poynter advised the police he was going to use the firearm but Mr van der Lubbe was not advised. At about 2.40 pm that day Mr van der Lubbe rang 111 stating he had heard a gunshot. The call centre later rang Mr van der Lubbe and left a message explaining that the gunshot sound was due to Mr Poynter shooting a pig. Mr van der Lubbe rang 111 again and the following exchange transpired:
COMMS ...you’ve rung through on the triple one line so it’s ah...
[Mr van
der Lubbe]
COMMS Do you want us to send them round to you Jack?
[7] At trial, Mr van der Lubbe represented himself. He did not deny he made the calls or that he used the words identified. Rather, he relied on provocation and selfdefence. He gave evidence. In the course of his evidence he said that by making the telephone calls he was “laying a paper trail” and he “wanted to be arrested” so he could tell his story in court and “the gunshots would be stopped permanently”.
[8] Judge Cameron told the jury it was not open to them to consider self-defence and that provocation was not a defence although it could be relevant at sentencing.
Issues on conviction appeal
[9] Mr van der Lubbe raises various matters which he says illustrate bias on the part of Judge Cameron. However, the key concerns underlying these complaints relate to what the jury was told about self-defence and provocation. In particular, the direction that self-defence was not open to Mr van der Lubbe and that provocation was only relevant to sentence. Accordingly, because this is really the substance of Mr van der Lubbe’s arguments, we focus on these two aspects and deal only briefly with the other matters he raises.
Self-defence and provocation
[10] An important plank in Mr van der Lubbe’s argument derives from a pre-trial ruling of Judge McElrea.[3] Judge McElrea was dealing with two Crown applications to set aside witness summons. In the course of the ruling Judge McElrea said that evidence to show what Mr van der Lubbe described as a “pattern of police malfeasance” could be relevant at trial.[4] The Judge said that he “cannot rule out [Mr van der Lubbe’s] submission that he is seeking to prove such a well established pattern of malfeasance that he was ‘forced’ (his word) to make these threats”.[5]
[11] Judge McElrea went on to say:
[31] Of course what the jury will have to decide, if the defence is left to them to decide, is the state of affairs as the accused believed it to be. The truth or falsehood of his “pattern of malfeasance” view is (strictly speaking) irrelevant to that inquiry. I therefore have considered whether, on this basis, evidence of the truth of that view is irrelevant and inadmissible, but have concluded otherwise. The accused must be allowed to show the truth of some key parts of this “pattern” if he wishes to – although it could be counterproductive – in order to persuade the jury that he actually held that view – that is, that it was part of the circumstances as he believed them to be.
[12] Mr van der Lubbe submits that Judge Cameron’s rejection of self-defence is inconsistent with Judge McElrea’s ruling and demonstrates bias on the part of Judge Cameron. We interpolate here that Judge McElrea foreshadows the possibility, in the passage we have cited above, that the defence will not be left to the jury. Mr van der Lubbe also says he was left at a loss once he knew self-defence would not be put to the jury.
[13] We see no merit in Mr van der Lubbe’s argument on this aspect. Judge Cameron was correct to refuse to let self-defence go to the jury. The factual narrative did not support the defence. Mr van der Lubbe was not acting in defence of himself or another but rather out of concern that otherwise no action would be taken by the police to stop what he saw as intimidation by Mr Poynter. His concern was at matters such as the use by Mr Poynter, on Mr van der Lubbe’s account, of a higher calibre gun than a .22. As Mr van der Lubbe put it in evidence:
... I decided that I would get myself arrested by uttering the kill word in the hope that all the dangerous provocations would stop.
...
I was trying to get arrested to stop the gunshot.
[14] He also said that he had decided that the first call, to the effect that he was going to “disable” Mr Poynter, “wasn’t going to do, wasn’t going to do the job” and hence he made the later call on 23 August.
[15] We add to complete the narrative that in his evidence Mr van der Lubbe said that the shooting had stopped. On his account, this was because Mr Poynter was “happy as Larry” that Mr van der Lubbe had been charged.
[16] In addition, the force (or threat of force) used was not reasonable in the circumstances.
[17] Mr van der Lubbe was in any event permitted to give evidence of the key features he would have had the jury rely on. As Mr Lillico notes, Mr van der Lubbe gave evidence of his belief that Mr Poynter shot four of Mr van der Lubbe’s deer that had got out of their enclosure; that on an earlier occasion he had been shot at on his account by Mr Poynter and called 111 on his cellphone as he lay flat on the ground; and his belief that Mr Poynter shot his cat.
[18] As a matter of law, Judge Cameron was also correct that provocation was not a defence. Mr van der Lubbe does not advance any other possible defence. The Judge’s directions did not indicate bias.
Other matters
[19] We now briefly discuss other matters Mr van der Lubbe relies on to show bias.
Time to prepare defence
[20] Mr van der Lubbe sought a deferral of the trial date to give him further time to prepare his case. Judge Cameron initially declined to adjourn the trial but ultimately did so. There is no complaint from Mr van der Lubbe about the adequacy of the amended trial date in terms of his preparation. Against that background, bias on the part of the Judge is not established.
Witnesses
[21] Two points are made here. First, Mr van der Lubbe said he was asked to advise the names of his witnesses and secondly, he was disadvantaged when three of his witnesses did not attend. There is nothing on the record about the former point. As to the second, it appears that three witnesses did not show up. However, no steps were taken by Mr van der Lubbe in relation to that. For example, no application was made for an adjournment and nor was there an application for a warrant to ensure attendance. Mr van der Lubbe says he did not know about the latter option. That may be so but this is not a basis for suggesting bias on the part of the Judge. There is also nothing to suggest that these witnesses’ evidence would have been material.
Failure to appoint counsel assisting
[22] Mr van der Lubbe says bias is indicated by the failure of the Judge to appoint counsel assisting and to advise Mr van der Lubbe to obtain legal advice.
[23] As to the latter, Judge McElrea in his ruling prior to trial urged Mr van der Lubbe to get a lawyer. The Judge said this:
[42] So nothing that I have said here means that [Mr van der Lubbe] is deprived of the opportunity to present his defence. But I do urge him to engage counsel because these issues of practice and procedure of the court, and issues of evidence, are in many ways technical issues on which the advice and assistance of a qualified lawyer is of great benefit. If [Mr van der Lubbe] is to have any real prospect of success, I suggest to him as a final note that he would be well advised to use the services of a lawyer.
[24] The failure to appoint counsel assisting is not an indication of bias. This Court in R v McFarland said:[6]
[53] ... the appointment of amici in criminal cases should be rare. Where an accused indicates that he or she wishes to represent him or herself, the court should ensure that he or she is aware of the right to counsel and of the availability of legal aid. The accused should be afforded an adequate opportunity first, to consider whether to take advantage of those rights and second, to exercise them if that is what he or she wants. But it is important not to overlook that accused persons have the right to present their defences personally. ... As this Court emphasised in R v Cumming [2006] 2 NZLR 592 at [40]–[46], the right to self-representation is an important right, the purpose of which is to “affirm the dignity and autonomy” of accused persons in addressing criminal charges.
[54] Accordingly, if, having been appropriately advised and given sufficient time ..., an accused chooses self-representation, that choice must be respected, and the accused must live with its consequences.
[25] We add here that there is no issue about Mr van der Lubbe’s knowledge of the availability of legal aid.
[26] In these circumstances, there cannot be any criticism of Judge Cameron’s approach.
Various exchanges with the Judge
[27] Mr van der Lubbe points to the Judge’s observation in a judgment declining to recuse himself to this effect:[7]
[9] Mr van der Lubbe. I will say this to you now, I expect you to conduct yourself with proper decorum throughout this trial, and that includes not interrupting a Judge when he is making a decision, and if you do not conduct yourself with proper decorum, you can expect me to hold you to account and I do not think that would be necessarily in your interests in front of a jury, so you will show proper courtesy and respect to the Court process throughout this trial.
[28] There are indications on the record of Mr van der Lubbe arguing with the Judge. For example, in his ruling of 12 March 2013, there are various interpolations apparently from Mr van der Lubbe indicating he was arguing while the Judge was delivering his judgment.[8] For example:
[1] Mr van der Lubbe we need to keep the trial focused on the issues which is the charge you are facing, [Mmm], right? [Yeah]. ... I am not going to permit you to flesh it out, if you like, [why not?] by going back to the [otherwise it’s just hollow words], old incidents because again it is a distraction for you to go into detail about how you have gained that mistrust and it is, therefore, irrelevant to the charges. [Irrelevant, I hate that word, I hate that irrelevant word]. Well you may but that is a word that the Court has always used because trials have to run efficiently and that means only evidence relevant to the issues is admissible in law. [That fact that I’ve been treated like crap for 25 years, I’m not able to explain why?]
[29] The record suggests that the Judge was properly ensuring that the conduct, in the context of a jury trial, was not going to disadvantage Mr van der Lubbe. The same comment applies to other similar criticisms made by Mr van der Lubbe.
[30] Mr van der Lubbe is also critical of the Judge’s failure to stop him from giving evidence about previous convictions. This criticism relates to evidence from Mr van der Lubbe when he postulated that the jury might be wondering why the police were “acting in such a biased and an obstructive manner” towards him. He said he would turn back the clock and explain. He continued:
In 1987 I made the life changing mistake of making a complaint against policemen. After having my home invaded by a mob of cops looking for non-existent illegal drugs, I tried to get redress against the person who had made the false allegation against me.
[31] Mr van der Lubbe went on a little further talking about various false allegations involving drugs made by a Mr Cornelius against him. At this point, the Crown prosecutor objected querying the relevance of this evidence. Judge Cameron then asked Mr van der Lubbe what it was he was trying to say. Mr van der Lubbe responded that he was trying to say that the police were treating him in the way they did because of the lies in his police file. The Judge said he thought Mr van der Lubbe had made his point, to which Mr van der Lubbe responded: “Not yet I haven’t.”
[32] Again, we see nothing in this other than the Judge trying to maintain some control over matters of evidence and relevance.
[33] Mr van der Lubbe also points to an exchange with the Judge about a defibrillator as a further indicator of bias. There is no evidence that the exchange happened in the way alleged.
Decisions in the course of trial
[34] Mr van der Lubbe is critical of various decisions made by the Judge in the course of the trial and at what he says was deliberate delay in dealing with an application about the admission of some documents. To illustrate the first criticism, Mr van der Lubbe had some photographs he wished to show to the jury on the computer. He also said he was prevented during the playing of the 111 call from being able to point out to the jury that the gunshot sound was not that of a .22 calibre rifle. There is a further complaint about a restriction on the use of documents.
[35] None of these matters relate to anything of particular relevance to the trial. They do not demonstrate bias on the part of the Judge but rather a concern to keep matters focused on what was relevant and maintain some control. Similar comments can be made about allegations of bias based on the Judge’s failure to intervene with respect to alleged misconduct by the prosecutor.
Sentence appeal
[36] We accept the submissions for the Crown that the fines imposed were within range.
[37] The only potential issue Mr van der Lubbe can raise relates to the impact of provocation. The Judge makes no mention of that issue in sentencing. In summing up the Judge had explained that, “if accepted”, provocation would have to be taken into account in imposing any penalty. Perhaps, as Mr Lillico submits, the Judge decided that hearing shooting in the area was not something that could amount to provocation. In any event, there can be no criticism of the end result. Mr van der Lubbe was charged with two offences carrying seven years imprisonment as a maximum.[9] Mr van der Lubbe had been offered the opportunity before proceeding to trial of a 12 month good behaviour bond on a guilty plea but decided to proceed to trial. In the circumstances, the imposition of fines of $1,000 for each conviction was well within range.
Result
[38] For these reasons, the appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law
Office, Wellington for Respondent
[1] R v van der Lubbe DC Wanganui CRI-2012-083-402, 29 April 2013.
[2] At [2].
[3] R v van der Lubbe DC Wanganui CRI-2010-083-402, 24 August 2012. The year in the file number is actually 2012.
[4] At [29].
[5] At [30].
[6] R v McFarland [2007] NZCA 449 (citation omitted).
[7] R v van der Lubbe DC Wanganui CRI-2012-083-402, 11 March 2013.
[8] R v van der Lubbe DC Wanganui CRI-2012-083-402, 12 March 2013.
[9] Crimes Act 1961, s 306.
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