Matches v Police [2020] NZCA 104 (21 April 2020)

Last Updated: 1 May 2020

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

CA27/2020 [2020] NZCA 104

	BETWEEN	BRENT LEONARD MATCHES Applicant
	AND	NEW ZEALAND POLICE Respondent

Court:	Goddard, Mallon and Thomas JJ
Counsel:	Applicant in Person J E Mildenhall for Respondent
Judgment: (On the papers)	21 April 2020 at 10.00 am

JUDGMENT OF THE COURT

1. The application for extension of time to file an application for leave to appeal is granted.
2. The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

[1] Mr Matches was found guilty in the District Court following a Judge-alone trial on one charge of stopping another person in a public place with intent to frighten him.^[1] His appeal against conviction was dismissed on 20 November 2019.^[2] He now seeks leave out of time for a second appeal against conviction^[3] on the basis that a miscarriage of justice has occurred, or may occur, if leave is not granted. The Crown opposes the application.

Extension of time

[2] Mr Matches’ notice of appeal was filed late but he has explained the delay.^[4] The Crown does not oppose his application for an extension of time and we are satisfied it is appropriate to grant that application.

Background

[3] Mr Matches had been involved in ongoing Family Court proceedings over many years. He was unhappy with the outcome of those cases and openly critical of the decisions of various Family Court Judges, including those of Judges Ian McHardy and Timothy Druce. On 19 February 2018, Judge McHardy was leaving the Auckland District Court and walking up Federal Street when Mr Matches confronted him, blocking his path and forcing him to stop. Mr Matches addressed Judge McHardy in strident terms, calling him, amongst other things, a “child abuser”. He told Judge McHardy that “they would be coming” to his home. The reference to “they” was understood to refer to Mr Matches’ supporters and others who protest against what they see as injustices perpetrated in the Family Court outside targeted Family Court Judges’ homes.
[4] Judge McHardy described Mr Matches’ manner and tone of voice as “angry”. He was forced to move around Mr Matches to continue walking up Federal Street. Mr Matches yelled increasingly loudly at him as he walked away. Judge McHardy said he was frightened by Mr Matches’ actions in stopping him and found the experience unnerving.
[5] A closed-circuit television (CCTV) camera recorded some of the interaction.
[6] At trial, Mr Matches denied stopping Judge McHardy and said that, when he yelled at him, he was criticising the Judge and protesting a decision made by him as a sitting Judge on an earlier occasion, but he had no intent to frighten him. Judge Rollo, having heard evidence from Judge McHardy and Mr Matches and having reviewed the CCTV footage, was satisfied that the charge was proved beyond reasonable doubt.
[7] Mr Matches was also charged with assaulting Judge Druce following an incident which took place on 1 March 2018. Judge Rollo acquitted Mr Matches of that charge.
[8] Mr Matches appealed his conviction to the High Court. He disputed the Judge’s finding that he had “the necessary mens rea”, claimed Judge Rollo had improperly ignored his defence of free speech, and had found him guilty on the basis of irrelevant and speculative factors. He also made a number of allegations that the Judge had acted improperly in his conduct of the trial. His appeal was dismissed.

Proposed appeal

[9] Mr Matches claims that the District and High Courts erred in their assessment of the evidence. He contends that Judge Rollo was “at best ambivalent” as to whether the necessary mens rea in the charge was present and therefore the legal threshold for a criminal conviction was not met. He says that Judge Rollo’s finding was against the weight of the evidence and that Judge Rollo’s own comments contradicted his finding that Mr Matches deliberately tried to frighten the Judge. Mr Matches submits that these errors led to a miscarriage of justice and there should be a second appeal.^[5]

Decision

[10] The Court must not give leave for a second appeal unless satisfied the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred.^[6] We are not persuaded the proposed appeal in this case raises a question of general or public importance capable of serious argument.
[11] A miscarriage of justice is any error, irregularity, or occurrence in or in relation to or affecting the trial which has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.^[7] Not every error or irregularity causes a miscarriage of justice.^[8] A real risk that the outcome was affected exists when there is “a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong”.^[9]
[12] Judge Rollo undertook a careful analysis of the evidence and viewed the CCTV footage twice. He noted it was entirely consistent with much of Judge McHardy’s account.^[10] He canvassed the evidence given by Mr Matches, who had agreed he was animated but denied being aggressive or threatening, or having any intention to frighten Judge McHardy.^[11]
[13] Judge Rollo was satisfied Mr Matches deliberately stopped Judge McHardy by briefly blocking the Judge’s progress up Federal Street by his sudden, close positioning of his face and body directly in front of the Judge.^[12] He noted Mr Matches agreed that he said, “Do you know who I am?” to Judge McHardy, and that he was agitated during their conversation.^[13] Judge Rollo acknowledged Mr Matches’ evidence that he had no intention to frighten Judge McHardy but was satisfied his deliberate actions towards Judge McHardy showed a clear intent to frighten him.^[14] He referred to Mr Matches’ strong physical presence and his assertive nature.^[15] He accepted Judge McHardy’s account of the incident as accurate and reliable,^[16] and that his description of how Mr Matches’ behaviour made him feel, while not an element of the offence, could be an indicator in part of Mr Matches’ intent.^[17] The Judge concluded:

[101] I also note that while Mr Matches said his intention was to use the opportunity to speak to Judge McHardy about the domestic violence case, Judge McHardy in his evidence, did not refer to any discussion concerning the protection order hearing or decision. Instead, Mr Matches began to berate and abuse Judge McHardy. His reference to “they” are coming to the Judge’s address, loudly proclaimed by Mr Matches, I find, was clearly intended to intimidate and frighten Judge McHardy. The volume of his voice, initially in very close proximity to Judge McHardy, and his abusive and insulting words, I further find, were all consistent with a clear intention to frighten the older and decidedly less robust Judge.

[14] Judge Rollo was satisfied beyond reasonable doubt that Mr Matches intended to frighten Judge McHardy in the sense of making him anxious by confronting him physically and verbally in the way he did. He therefore rejected Mr Matches’ contention that he was merely exercising his right to protest against a judicial officer’s decisions. For these reasons, the Judge found the charge proved beyond reasonable doubt.
[15] In the High Court, Gordon J considered whether Judge Rollo had erred in his assessment of the evidence, addressing Mr Matches’ contention that he lacked the necessary intent, and whether the Judge had relied on irrelevant and speculative factors. She noted that whether Mr Matches knew his conduct was likely to cause Judge McHardy to be frightened was a matter of inference to be drawn from Mr Matches’ conduct. She referred to a number of aspects of the evidence from which that could be inferred.^[18] Gordon J was satisfied Judge Rollo had not considered irrelevant factors and dismissed the appeal.
[16] The grounds on which Mr Matches seeks leave for a second appeal were therefore before Gordon J in the High Court at the first appeal.
[17] We do not consider that a miscarriage of justice has occurred or may occur if leave for a second appeal is not granted. No arguable error of law has been identified by Mr Matches. The evidence was carefully assessed in both the District Court and the High Court. All the concerns Mr Matches seeks to raise in relation to the District Court decision were raised by him in the High Court, and addressed carefully and in considerable detail by the High Court Judge. Mr Matches has not identified any basis on which the assessment of the facts by the Courts below, or the application of the law to the facts, might be interfered with by this Court. Mr Matches’ arguments have insufficient prospects of success to justify granting leave for a second appeal.

Result

[18] The application for an extension of time to file the application for leave to appeal is granted.
[19] The application for leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent.

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^[1] Police v Matches [2018] NZDC 11315. Summary Offences Act 1981, s 21(1)(e). The maximum penalty is three months’ imprisonment or a $2,000 fine: s 21(3).

^[2] Matches v Police [2019] NZHC 3029.

^[3] Criminal Procedure Act 2011, s 237(1).

^[4] Mr Matches’ appeal was filed in the High Court in error.

^[5] The application for leave indicates that Mr Matches also seeks to appeal his sentence. However, the High Court appeal was against conviction only and the application does not otherwise indicate that Mr Matches seeks to appeal the sentence of 45 hours' community work imposed by Judge Rollo on 25 March 2019 (Police v Matches [2019] NZDC 5375).

^[6] Criminal Procedure Act, s 237(2).

^[7] Section 232(4).

^[8] R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30].

^[9] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

^[10] Police v Matches, above n 1, at [57].

^[11] At [66].

^[12] At [86].

^[13] At [78].

^[14] At [91].

^[15] At [93].

^[16] At [94].

^[17] At [100].

^[18] Matches v Police, above n 2, at [39].