Easton v Police [2018] NZCA 411 (9 October 2018)

Last Updated: 18 October 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA416/2018 [2018] NZCA 411

	BETWEEN	BENJAMIN MORLAND EASTON Appellant
	AND	NEW ZEALAND POLICE Respondent

Hearing:	5 September 2018
Court:	Brown, Duffy and Peters JJ
Counsel:	Appellant in Person R K Thomson for Respondent
Judgment:	9 October 2018 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against conviction and sentence is declined.
___________________________________________________________________

REASONS OF THE COURT

(Given by Duffy J)

[1] On 15 March 2018 following a Judge-alone trial in the District Court at Wellington, Mr Easton was convicted of common assault and sentenced to 80 hours’ community work.^[1] He appealed against his conviction and sentence to the High Court.
[2] On 27 June 2018, Thomas J dismissed the appeal.^[2]
[3] As with his appearance in this Court, on each occasion Mr Easton represented himself in the lower Courts.
[4] Mr Easton now seeks leave to bring a second appeal in respect of both his conviction and his sentence.

Facts

[5] On the evening of 11 January 2018, the victim and his five children were at Waitaha Cove beach. The victim heard someone yell out something like, “Fuck off.” He could not see who yelled this.
[6] Mr Easton then came from a parked truck, approached the victim and pushed him with his finger. The victim began to record the encounter on his cell phone. Mr Easton pushed the victim until he dropped his phone. He then punched the victim under his right eye.
[7] The victim tried to escape but Mr Easton continued to come at him. The victim grabbed Mr Easton’s arm and managed to wrestle him to the ground.
[8] A witness heard the commotion and approached. He separated the two men, who at this stage were tangling on the ground. Mr Easton then went back to his truck and poured water over a bite mark which had been inflicted on him by one of the victim’s children. A second witness arrived shortly after and consoled the children, followed by two police officers.

Thomas J’s decision

[9] Before Thomas J Mr Easton argued:

• (a) The trial Judge erred in not allowing evidence from a Wellington Council representative and an expert in taking stills from cell phone footage;^[3]
• (b) The trial Judge dismissed his evidence before reading it;
• (c) The decision, if upheld, would demonstrate that access to justice is dependent on one’s financial means;
• (d) The Judge may have been biased against him since he had had a previous hearing with him in the past;
• (e) The Judge made the following incorrect assessments:
  • (i) Mr Easton was convinced the victim had hit him; and
  • (ii) One of the witnesses separated him from the victim.
• (f) The Judge failed to appreciate that the police evidence showed the victim was lying;
• (g) Mr Easton did not have the right to be heard; and
• (h) In respect of sentence, Mr Easton should have been discharged due to his contributions to the community.

[10] Justice Thomas considered all of Mr Easton’s arguments and rejected them. The essence of her discussion is as follows:

[25] I am satisfied the Judge made no error. The witnesses Mr Easton sought to summons had no bearing on the issue at hand – that is, whether or not Mr Easton had intentionally applied force to the victim. Evidence regarding the making of the stills could not have any bearing on that issue. The evidence of the Council representative could be similarly assessed, with one very narrow point of difference.

[26] ... If Mr Easton feared violence from Council representatives and had previously feared for his safety, that might be relevant to his state of mind on the day in question. However, there was no suggestion that the victim was a Council representative and no suggestion Mr Easton perceived him to be so. ...

...

[28] In any event, Mr Easton’s defence, that the victim was instead the aggressor and Mr Easton feared for his safety, was simply not supported by the evidence. ... Those findings lay to rest any concerns that the evidence of the Council representative could have had a bearing on whether Mr Easton genuinely feared for his safety.

...

[30] Similarly, there is no merit in the second ground of appeal. The Judge clearly preferred the evidence of the victim to that of Mr Easton and no arguments reasonably supporting a challenge to that preference have been identified. The victim had swelling and a mark supporting the claim that Mr Easton hit him, and the victim’s evidence was supported by cell phone footage. In contrast, Mr Easton’s claim that the victim punched him was not only unsupported by the evidence but also contradicted by it. ...

[31] I note Mr Easton’s concern that he had a prior involvement with the Judge. It is not unusual for a District Court Judge to hear a case involving a person with whom she or he has dealt previously in a different context. There is nothing to support any suggestion of predetermination or that the Judge should have recused himself.

[32] As to the issue of whether the appeal process poses risks to Mr Easton’s rights under both the New Zealand Bill of Rights Act 1990 and the Universal Declaration of Human Rights, Mr Easton has had the opportunity to be heard. He has brought wide-ranging challenges to the decision. Mr Easton has been subject to a process which observes rights to minimum standards of criminal procedure and has been able to exercise his rights to natural justice through the appellate process.

[11] In terms of sentence, Thomas J concluded that given the relatively low amount of community work and the nature of the attack, there could be no suggestion that the end sentence was manifestly excessive.^[4]

Leave to bring a second appeal

[12] In order to grant leave to bring a second appeal against conviction, we must be satisfied that:^[5]

• (a) The appeal involves a matter of general or public importance; or
• (b) A miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[13] The test for leave to bring a second appeal against sentence is the same.^[6]
[14] A matter of general or public importance is one that raises an important question of law having broad application beyond the circumstances of the particular case.^[7] In relation to a first appeal against conviction, a miscarriage of justice is defined as any error or irregularity that has created a real risk that the outcome was affected.^[8] This Court has noted that this definition is relevant to an application for leave to bring a second appeal against conviction.^[9]

Mr Easton’s submissions

[15] Mr Easton submits that there is a public interest in having his appeal heard for the following reasons:

• (a) No case law was provided to him in advance of the High Court hearing;
• (b) If the first appellant court is found to have engaged in wilful and negative interference in the delivery of justice the public needs to be aware of this, particularly when the affected party is a lay litigant;
• (c) The range of conclusions drawn by the Court were exaggerated when compared to the evidence;
• (d) In its written submissions to the High Court, the Crown allegedly mistyped s 232(4) of the Criminal Procedure Act 2011 (CPA) so as to refer to miscarriages of justice occurring in the trial, but not also “in relation to” the trial, thereby misleading the Court; and
• (e) The question of whether the exclusion of evidence which contributes to a miscarriage of justice is permitted under s 8(1)(b) of the Evidence Act 2006 is of public interest.

[16] Similarly, in terms of a miscarriage of justice Mr Easton submits:

• (a) There is no rational truth to the victim’s explanation of events;
• (b) The video footage shows that at the point when the victim was bending down to pick up his phone, during which he was at his most vulnerable, no assault occurred;
• (c) There has been a collaborative “operation” against Mr Easton; and
• (d) The victim’s injuries were self-inflicted.

Crown’s submissions

[17] The Crown raises several arguments in response:

• (a) The case law relied upon by the Crown was in relation to general propositions of law, copies of which were provided to Mr Easton after the hearing;
• (b) There is no evidence Thomas J relied on the Crown’s written submissions for her reading of s 232(4) of the CPA, and if she did the error in transcription was minor;
• (c) Thomas J was entitled to defer to the trial Judge’s assessment of evidence and witness credibility;
• (d) Thomas J was correct to dismiss Mr Easton’s proposed witnesses as irrelevant to the defences raised by him. There was no indication that the victim was a Council representative;
• (e) During the trial Mr Easton never put to the victim in cross-examination that he had punched himself; and
• (f) Given the attack was unprovoked and in front of the victim’s children, the sentence of 80 hours’ community service was not manifestly excessive.

Discussion

[18] We accept the Crown’s submissions in each regard. After careful consideration of Mr Easton’s arguments we find that none of the matters raised by him suggest anything untoward may have occurred during the trial such that a miscarriage of justice may have occurred either in relation to conviction or sentence. Similarly, the issues he raises, while wide-ranging, do not entail any matter of general or public importance.
[19] Accordingly we are satisfied that the proposed appeal has, on the material before us, no apparent merit and therefore leave to appeal should be declined.

Result

[20] The application for leave to bring a second appeal against conviction and sentence is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v Easton [2018] NZDC 8014.

^[2] Easton v Police [2018] NZHC 1553.

^[3] Mr Easton wanted to call the Council representative in order to detail a series of matters which had caused friction between himself and the Council which the trial Judge held were irrelevant to the trial; similarly, the trial Judge held there was no need to hear evidence from the expert on taking stills given the stills themselves were produced into evidence and accepted by the police.

^[4] At [33].

^[5] Criminal Procedure Act 2011, s 237.

^[6] Section 253.

^[7] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].

^[8] Criminal Procedure Act, s 232(4)(a).

^[9] McAllister v R, above n 7, at [38].