Wiki v Police [2012] NZHC 2188 (30 August 2012)

Last Updated: 11 September 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-488-28 [2012] NZHC 2188

WILLIAM JASON WIKI

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 12 July 2012

Further memoranda

filed: 30 July 2012 and 24 August 2012

Appearances: Appellant in person (assisted by his mother, Mrs Wiki, as McKenzie

Friend)

TR Nicholls for Respondent

Judgment: 30 August 2012

_{JUDGMENT OF TOOGOOD J}

This judgment was delivered by me on 30 August 2012 at 9:30 am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

W Wiki, C/- 38 Johnston Road, Kawakawa, Northland

TR Nicholls, Crown Solicitor, Whangarei: [e-mail]

WIKI V NEW ZEALAND POLICE HC WHA CRI-2012-488-28 [30 August 2012]

Introduction

[1] William James Wiki Junior has appealed against his conviction by Judge McDonald in the District Court at Kaikohe, on 12 March 2012, on one charge of threatening to cause grievous bodily harm to a Police officer and one charge of escaping from lawful custody, both offences having been committed on

20 August 2011.

[2] Mr Wiki also appeals against a sentence of 150 hours community work and nine months’ supervision imposed by the Judge on 24 April 2012. Pending the hearing of the appeals, the Probation Service has not required Mr Wiki to undertake the community work ordered by the Court.

[3] The appeals were originally set down for hearing on 5 June 2012 but subsequently adjourned by Lang J. After hearing submissions from Mrs Wiki on behalf of the appellant and from the respondent on 12 July 2012, I indicated that I would not issue judgment pending further inquiries which I asked counsel for the respondent, Mr Nicholls, to undertake. Mr Nicholls has now reported to me. By a Minute dated 14 August 2012, I gave Mr Wiki until 24 August 2012 to respond to the matters referred to in Mr Nicholls’s memorandum. In a letter dated 24 August 2012, Mr Wiki largely repeats the jurisdictional basis upon which the District Court’s decision was challenged in his earlier written submissions and the submissions made by Mrs Wiki at the hearing.

The findings of the District Court judge

[4] The relevant findings of the District Court Judge on the charge of threatening to cause grievous bodily harm are contained in the following passages from the judgment:

[8] Sergeant Row was, on 20 August 2011, the officer in charge of the rural patrol group based in Kaikohe. Its primary role was and is traffic enforcement.

[9] On that evening Sergeant Row was working in Kawakawa by himself. He was in a full police uniform, wearing a high viz vest with the

words “Police” across it. He was driving a marked police patrol car. He set

up a check point on State Highway One in central Kawakawa, approximately

20m west of the Hunderwasser toilets. His aim was to stop vehicles to check drivers for alcohol consumption, to see if the driver had a driver’s licence and, if they did not, if the driver was driving within the terms of that licence. I accept that what he was doing was a more thorough check than the “standard” alcohol check point.

[10] At 8:15 pm he waved over a turbo motor vehicle. The driver complied with the request to stop. There is no doubt that it was being driven by the defendant Mr William Wiki. Sergeant Row accepted that prior to stopping the defendant’s vehicle he did not know Mr Wiki and had not previously seen him Sergeant Row in effect made a dock identification of Mr Wiki as the driver.

[5] The Judge recorded that it was not in dispute that Mr Wiki was the driver of the vehicle.

[15] Sergeant Row breath tested Mr Wiki. He passed. I find it proved that Sergeant Row asked Mr Wiki if he had a licence. Mr Wiki said he did and gave Sergeant Row his learner’s licence which he had obtained on

3 August 2011. There is no doubt that Mr Wiki was driving outside the conditions of his licence. The front seat passenger, his partner, only had a

restricted licence. A learner can only drive if he or she has a person seated in

the front passenger seat who holds, and has held for at least two years, a full New Zealand driver’s licence; Rule 16 Land Transport (Driver’s Licence) Rule 1999.

[16] I find that the defendant became upset as Sergeant Row began writing out an infringement notice. This was combined with Sergeant Row saying that his partner could not drive as she would be driving outside the terms of her restricted licence with passengers. Mr Wiki told Sergeant Row that he, the Sergeant, had no jurisdiction over him. He told the Sergeant to put the notice on the dashboard of the car.

[17] I find Mr Wiki started his car saying “No I will drive the car home”. At that point Sergeant Row invoked his power under s 121A of the Land Transport Act. He told Mr Wiki not to drive. He attempted to take possession of the ignition keys. Both Sergeant Row and Mr Wiki gave evidence that the Sergeant did reach in to get the keys. There is some dispute as to how that was done. I accept the evidence of Sergeant Row in that regard. He took the keys out of the ignition at which point Mr Wiki grabbed them. I find there was a brief struggle over the keys. Mr Wiki told me he was grabbed by the front of his clothing and pushed into the seat by Sergeant Row during that. Sergeant Row has no recollection of that occurring, but accepts he may well have done so. I accept that did happen.

[18] Sergeant Row was trying to get the keys to prevent Mr Wiki driving off. Mr Wiki was trying to stop the Sergeant from doing that. Mr Wiki said “you grabbed my arm that’s an assault, I’ll knock you the fuck out; or “if you put your hands on me again I’ll knock you the fuck out”.

[6] The Judge then considered the necessary ingredients of the charge under s 306 of the Crimes Act 1961 and made his factual findings as follows:

Did the defendant threaten to do grievous bodily harm to Sergeant

Row?

[22] There is no doubt that the defendant made a threat (“I’ll knock you the fuck out”). In using that language did he mean, and was it intended by him to mean, that he meant to cause really serious bodily harm to Sergeant Row. I find he did. He was angry at being stopped. Angry at being told he could not drive because he only had a learner’s licence. Told that he had to hand over his keys. Upset when Sergeant Row reached in to try and get the keys to prevent him from driving off. Angry at being touched (pushed/shoved by Sergeant Row). When he said the words he intended them to mean just that. That he was going to cause serious bodily harm to the Sergeant. To knock someone out is to cause serious bodily harm.

[23] The first element is proved beyond reasonable doubt.

Did he intend that his threat to be taken seriously?

[24] Sergeant Row took it seriously. That is only of evidential significance. It is not whether Sergeant Row took it seriously but whether it has been proved beyond reasonable doubt that the defendant intended it to be taken seriously. Proof of intention must almost always come from what was said and done before, at the time, and after and from that infer what a person intended. There is the lead up to the threat, the state of mind that I have already found that Mr Wiki had prior to the threat. How he said it, What was said. The only inference I can draw is that he intended it to be taken seriously. This was not said in jest, or indeed blurted out in the heat of the moment.

[7] The Judge then referred to the possibility of self-defence and said:

[27] Even if I found there was a credible narrative (and I have serious doubts as to that) to consider s 48 I find he was not acting in self defence when he spoke the words. I must first consider the circumstances as the defendant believed them to be. He was sitting in the driver’s seat of his car when there was a scuffle over the keys and he was pushed into his seat. In those circumstances he was acting in self defence when he said, “I’ll knock you the fuck out”. He himself said he was not. He said it in anger. Words, indeed even blows uttered or struck in anger are not done in self defence.

[8] The Judge found the charge to be proved beyond reasonable doubt. He also held that Sergeant Row told the appellant he was under arrest; that the Sergeant was then distracted by others who were present; and that Mr Wiki escaped from Sergeant Row’s custody by running off. Convictions on the charges of threatening to cause grievous bodily harm escaping from lawful custody were entered accordingly.

[9] The Judge dismissed an associated charge of resisting arrest.

[10] Sentencing Mr Wiki on 24 April 2012, Judge McDonald rejected the possibility of a fine or fines on the basis that the offending required a sterner penalty and that, in any event, Mr Wiki could not afford to pay a fine. He adopted an approach which reflected the totality of the offending in imposing concurrent sentences of community work and supervision, with a direction that Mr Wiki should undertake such anger management counselling or other courses as may be directed.

[11] At the hearing, the appellant did not challenge the sentences imposed.

The appeals

[12] The grounds of appeal set out in the notice of appeal focus on issues of Maori sovereignty and the jurisdiction of the District Court to deal with the prosecution of Mr Wiki Junior on criminal charges. It is unnecessary to describe them more fully.

[13] In Phillips v R,1 the Court of Appeal held that the New Zealand Parliament has the sovereign power to legislate for criminal offending such as that disclosed in the present appeals. Furthermore, in Wallace v R2 the Supreme Court declined leave to an appellant to advance similar Maori sovereignty arguments on the basis that they were “plainly unsound legally”.

[14] As I informed Mrs Wiki at the hearing, I am required by the authority of these cases to conclude that the District Court had jurisdiction to deal with the charges at issue and the appeals could not be sustained on the submitted grounds.

[15] I am satisfied on the material provided on appeal that, on the evidence as found by the Judge, the convictions were justified.

_{The possibility of fresh evidence}

1 _{Phillips v R [2011] NZCA 225.}

2 Wallace v R [2011] NZSC 10.

[16] The events leading to the conviction of Mr Wiki apparently took place in the vicinity of a closed-circuit television camera operated by the Kawakawa Township (or possibly the Far North District Council). On 22 August 2011, two days after the incident, Mr Wiki sought a copy of the CCTV coverage for 20 August between

7:30 pm and 9:00 pm. On 23 August, Sergeant Le Conte of the Kawakawa Police said that he presumed that the request related to Mr Wiki’s arrest but said that the Police could not assist regarding the disclosure of the CCTV footage. He said that it was not Police practice to release requested CCTV footage from Kawakawa Township cameras to members of the public and said that the CCTV system was not owned by the Police.

[17] Responding to that letter, Mr Wiki’s father said in a letter dated

26 August 2011, that he believed that the information captured on the CCTV footage would show the incident leading to the charges, would show discrepancies in the Police summary of facts which had been provided by the Police prosecutor. The request was renewed. On a copy of the letter of request, Sergeant Le Conte has signed and dated the copy at 1:20 pm on 26 August 2011. Mrs Wiki told me during the hearing that Sergeant Le Conte had said at that time that it may be possible for Mr Wiki and his parents to view the footage even if there were technical reasons why it could not be copied. Although Mr Wiki indicated that he would like to see the footage, that opportunity was not, in the end, provided.

[18] A careful reading of Judge McDonald’s reasons for his decisions suggested that it might be the case that the CCTV footage would not materially assist the appellant on appeal, even if it was available and ruled admissible on the appeal as fresh evidence under s 119(3) of the Summary Proceedings Act 1957.

[19] I was uncomfortable, however, about the prospect of the appeal being determined without some inquiry having been made. Accordingly, after receiving an indication of co-operation from Mr Nicholls, I directed the Crown Solicitor at Whangarei to make inquiries of the Police and the Far North District Council (Kawakawa Township) as to the availability of relevant CCTV footage recorded on

20 August 2011 between 7:30 pm and 9:00 pm, and specifically in relation to the

incidents described in the notes of evidence taken at the defended hearing before

Judge McDonald in the District Court at Kaikohe on 27 February 2012.

[20] Mr Nicholls reported to me by memorandum dated 30 July 2012. He attached a job sheet from Sergeant Davis of the Kawakawa Police which explained that no relevant CCTV footage was available. This information has been provided to Mr Wiki.

[21] Mr Wiki says that, although it is now claimed that the CCTV footage was not available, this contention is disputed.

[22] It is unnecessary for me to resolve that issue. So far as there was any dispute in the District Court as to what occurred at the time Mr Wiki was alleged to have issued the threat, the Judge either resolved the matter in favour of Mr Wiki or held that the accounts of Mr Wiki and Sergeant Row were similar and that the actual wording used was not important. CCTV footage of the incident would not have assisted the Judge to resolve that matter, in any event. In relation to the charge of escaping from lawful custody, the fact that Mr Wiki left the scene of his encounter with Sergeant Row was not disputed and, again, I am satisfied that CCTV footage would not have resulted in any different outcome.

Disposition

[23] For the reasons given, the appeals against conviction and sentence are dismissed.

................................................

Toogood J