Hynes v Police [2021] NZHC 1984 (3 August 2021)

Last Updated: 27 August 2021

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-68 [2021] NZHC 1984

BETWEEN	PETER ALFRED HYNES Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 March 2021
Appearances:	Appellant in person A S C Alcock for Respondent
Judgment:	3 August 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 3 August 2021 at 12:00 pm

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Hamilton

HYNES v POLICE [2021] NZHC 1984 [3 August 2021]

Introduction

• [1] Peter Alfred Hynes (the appellant) appeals the decision of Judge A S Menzies delivered in the District Court at Hamilton on 1 July 2020 finding him guilty and convicting him on three charges¹, namely: male assaults female;² assault with a weapon;³ and assault with intent to injure.⁴ Mr Hynes represented himself at his appeal and before the District Court. At his Judge-alone trial in the District Court he declined to enter pleas to the charges, and consequently the trial proceeded on the basis of deemed not guilty pleas.

• [2] The appellant advances six grounds of appeal. They are:

1. I was not given a fair trial and was denied a McKenzie friend and was supplied a lawyer instead. Witnesses of the prosecution gave false evidence.

2. I’ve had a total of 31 Court Hearings, including 4 trials from 02/10/2018

– 24/06/2020.

3. I was offered a bargain by Police Prosecution, that they would withdraw 2 of the charges, if I pleaded Guilty to “Male assaults Female.” I denied offer. At the Trial – 24/06/20, I was convicted of “Male assaults female” only. I was found guilty from the date of the offer.

4. I was denied the right to present my defence of Trespass and self-defence at the trial.

5. I was denied the right to examine the witnesses for the prosecution. Bill of Rights Act, s 25...

6. Primary legal argument uncontested.

Background

• [3] The following is a summary of the evidence heard by the District Court.

• [4] The charges brought against the appellant arose from events occurring on 25 September 2018. The Police alleged that on that day the appellant went on to a neighbour’s property several doors along the road from his house, to retrieve his dog which had run away. The police alleged that when the appellant caught the dog, which

¹ Police v Hynes [2020] NZDC 12812.

² Crimes Act 1961, s 194(b); maximum penalty imprisonment not exceeding two years.

³ Crimes Act 1961, s 202C; maximum penalty imprisonment not exceeding five years.

⁴ Crimes Act 1961, s 193; maximum penalty imprisonment not exceeding three years.

was a young puppy, he punched it in the head and kicked it. The dog was squealing loudly. This conduct was witnessed by the owner of the property (the daughter) and her mother who was visiting (the mother). The two women called out to the appellant to stop what he was doing to the puppy. The prosecution case was that the appellant reacted to this by abusing the two women and saying “shut your fucking mouth up bitch,” and that he could do what he liked with his dog, while lifting the puppy off the ground by its lead.

• [5] As this was taking place a visitor, Mr B, arrived at the address in his car. He had arranged to collect the daughter and take her out to lunch. While he was still seated in his car he saw the appellant and the two women and heard swearing. The mother then turned towards him and called out to him to call the Police, which he did straight away. The Police operator told him that the police officers were on their way, and he remained in his car, relating what he could see taking place. However, when he saw that the appellant was becoming more aggressive and violent, and saw him dangle his dog in the air, he got out of his car and while still on the telephone to the police operator, he approached the group while the arguing was continuing.

• [6] The appellant then walked back to his house and threw the dog in his truck parked on the roadside and went inside his house. Mr B then told the police operator that as the appellant had gone inside his house he thought the incident was over. However a short time later the appellant walked back along the road to where the two women were standing on the footpath in front of their house. He was holding a long metal pole. As he approached the women he began swinging the pole in a martial arts manner in close proximity to the women while saying, “Fuck off or I’ll fuck yous up”. The daughter then took hold of the pole in an attempt to stop the appellant hurting her and her mother with it. After a struggle with the appellant, the mother managed to take the metal pole from him. She then went and put it in the back of the appellant’s truck to get it out of the way as she thought it could be dangerous.

• [7] The appellant then pushed the daughter in the chest saying, “get your tits out of my face” and punched her twice in the face with his closed fist and kneeing her in the chest several times. At that point Mr B ran forward and grabbed the appellant from the back and tried to pull him away from the women and back towards the road,

whereupon the appellant started punching him. Mr B said he managed to move away to the other side of the road but the appellant followed him and punched him several times and he landed on the ground with the appellant falling on top of him and causing a fracture to his thigh. While Mr B was on his back on the ground, the appellant sat on top of him and continued punching him in the face.

• [8] The appellant was restrained by another member of the women’s family and had calmed down and been released before the Police arrived. When the Police arrived Mr B was taken by them to hospital. He later required surgery for his fractured thigh.

Approach on appeal

• [9] The appeal is brought pursuant to s 232 of the Criminal Procedure Act 2011. Section 232(2) relevantly provides that the Court must allow the appeal if satisfied that, in the case of a Judge-alone trial, the Judge erred in her or his assessment of the evidence to such an extent that a miscarriage of justice has occurred,⁵ or that a miscarriage of justice has occurred for any reason.⁶ A “miscarriage of justice” is defined in s 232(4) as:

...any error, irregularity, or occurrence in or in relation to or affecting the trial that–

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

• [10] A “real risk” that the outcome of the trial was affected will arise if there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.⁷ Irregularities which “plainly could not, either singly or collectively, have affected the result of the trial” are not miscarriages of justice and the appellate court must disregard them.⁸

⁵ Criminal Procedure Act 2011, s 232(2)(b).

⁶ Criminal Procedure Act 2011, s 232(2)(c).

⁷ Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110]; Wiley v R [2016] NZCA 28, [2016]

3 NZLR 1 at [27].

⁸ Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30]; Wiley v R [2016] NZCA 28, [2016] 3

NZLR 1 at [28].

District Court Judgment

• [11] The appellant was charged and first appeared in the District Court on 2 October 2018. On 15 October 2018, when asked to enter pleas to the charges he refused and pleas of not guilty were deemed to have been entered. As a result of delays and adjournments due to the COVID-19 pandemic the trial did not take place until 1 July 2020.

• [12] The appellant was self-represented at the trial. The prosecution called evidence from the mother and daughter, Mr B, and a police officer who attended the incident. The appellant cross-examined the prosecution witnesses and made submissions denying the accuracy of the accounts of the incident given by the prosecution witnesses. He did not give evidence himself or call any evidence. He made submissions to the effect that he never struck anyone, and that there was no evidence of him doing so. He said that he had been overcharged, that he acted in self-defence, and that “there was a motion to dismiss”.⁹

• [13] In relation to the charge of assault with a weapon, Judge Menzies accepted the evidence of the two women and Mr B and was satisfied that the events that had occurred prior to the appellant going to his house, getting the pole and bringing it back to the scene was for the purpose of using it to threaten the application of force. Referring to the charge of assault with a weapon the Judge noted that there was no evidence that the appellant struck anyone with the pole, and said:¹⁰
  • [14] ... The police case is, however, that he used the pipe in such a way as to fall within the definition of assault that I described previously. That is attempting to apply force or threatening by any act or gesture to apply force.

...

• [15] In so far as that charge is concerned I certainly find that there was no striking with the pipe at all. What I am satisfied occurred from the evidence that I heard, was that following the initial altercation about the dog the defendant went into his property and came out with the pipe. The descriptions by two of the witnesses, the two civilian witnesses [the mother] and [Mr B], were that the defendant was swinging the bar around as if being used like a taiaha.

...

⁹ At [13].

¹⁰ Police v Hynes, above n 1, at [14] – [18].

[18] I am satisfied that he was swinging it around and I am satisfied that the circumstances in which he went and located it and brought it back to that scene was to threaten the application of force using that bar. That any person there, either of the complainants, would have believed on reasonable grounds that he had the present ability to carry out that purpose. He was standing there, he was swinging the bar around, he could readily have struck people with the bar. He did not, but I am satisfied that what he did was sufficient by way of directly or indirectly threatening an act or gesture to apply force to the person of another and that those persons and specifically the complainant [the daughter] had reasonable grounds to believe he had the present ability to carry out that purpose.

• [14] The Judge was also satisfied that the charge of male assaults female was proven.¹¹ He noted that two witnesses, namely the mother and Mr B, who had been standing close by, gave consistent evidence that the appellant struck the daughter in the face, and he had “little difficulty in inferring that such actions occurred and were intentional.”¹²

• [15] The third charge of assault with intent to injure was originally laid as one of wounding with intent to injure, however the Judge was not satisfied that the evidence established an intention on the part of the appellant to wound Mr B.¹³ He consequently amended the charge to assault with intent to injure.¹⁴ The appellant objected to the Court making any amendment without his consent, and did not consent.¹⁵ Having amended the charge the Judge was satisfied that the elements of the amended charge were made out.¹⁶

Submissions

Appellant

• [16] The appellant filed a written submission in support of his appeal which he elaborated on in his oral submissions at the hearing at which he was accompanied by his support person, Mr Timoti. The appellant argues that the convictions were entered following a multiplicity of formal court appearances and after three previous trial fixtures were adjourned. He submits that Judge Menzies erred by amending the charge

¹¹ At [20]–[21].

¹² At [21].

¹³ At [24].

¹⁴ At [25].

¹⁵ At [26].

¹⁶ At [27] and [31].

of wounding with intent to injure during the trial to a charge of assault with intent to injure, when he did not consent to that amendment being made.

• [17] He submits that his defence of self-defence was not taken into account. He says that the victims had come on to his property and that he had trespassed them. He said that the complainants had followed him from their property to his property, without “probable reason or probable cause to be [on his] property”. He says that the complainants had trespassed on his property, and had thereby committed an “indirect assault” on him.

• [18] He says that the victims had grabbed the metal pipe he was using as a taiaha and they had removed it from his grasp. He says that he was the one who was attacked, and he acted to defend himself by blocking their blows. He also argues that the proceedings and charges brought against him are a breach of his Māori customary rights of occupation and a nullity.

• [19] Addressing the issue of delay by reason of the 31 court appearances and four trial fixtures for this matter, the appellant submits these amounted to “an abuse of process, a miscarriage of justice”.

Respondent

• [20] The respondent submits that justice has not miscarried and that the appeal should be dismissed.

• [21] Ms Alcock submits that the appellant was not denied a fair trial. Counsel was appointed by the District Court as amicus curiae to assist the appellant at his trial, and the appellant was given the opportunity to put his case to the prosecution witnesses.

• [22] Further, the appellant was not denied the right to present his defence of trespassing and self-defence at trial. The appellant did not advance that defence in the course of his cross-examination of the prosecution witnesses. The focus of his cross- examination questions related to whether he physically assaulted either of the complainants with the pole, and he did not raise self-defence at any point during the trial.
• [23] The respondent submits that the notes of evidence show that the appellant questioned all prosecution witnesses and there was no denial of his right to do so. Counsel submits that having heard the evidence of the prosecution witnesses, Judge Menzies was justified in deciding that the wounding charge should be amended and reduced to one of assault with intent to injure and then making his assessment of the evidence and concluding that he was satisfied that the charges were proven.

• [24] Ms Alcock accepted that the unusual number of appearances and the associated delay was generally inconsistent with the objective of a speedy determination of a prosecution, but noted that some of the delay arose from issues relating to disclosure raised by the appellant and that there were also a number of occasions when the appellant did not appear at Court when required, resulting in adjournments.

Discussion

• [25] I commence by addressing the question of delay and the significant number of Court appearances that took place before the charges were heard and determined at the trial before Judge Menzies. I must allow the appeal if there is any error, irregularity, or occurrence in or in relation to or affecting the trial that has resulted in an unfair trial. The number of times the appellant was required to appear in court, whilst not an error of the trial judge, was nevertheless an irregularity.

• [26] The District Court file records that the appellant’s matter was the subject of 17 court hearings prior to his Judge-alone trial on 1 July 2020. He was granted bail at his first court appearance and remained on bail thereafter. At his second appearance on 15 October 2018 he refused to enter pleas to the charges and was deemed to have entered pleas of “not guilty”. A “back-up” fixture scheduled for 10 June 2019 did not proceed and there followed remands first to 24 June 2019 and then 22 July 2019 for the making of a fixture for a judge-alone trial. However on 22 July 2019 the appellant raised an issue relating to the prosecution disclosure and the matter was adjourned to 21 October 2019. On that date the appellant failed to appear and a warrant for his arrest was issued. The warrant was cancelled the following day, and the appellant was remanded to 27 November 2019 for a pre-trial hearing regarding disclosure. However, on 27 November the appellant failed to appear at 10:00am when the matter was called

and a warrant for his arrest was issued. He did however arrive at court later that morning and the matter was then adjourned to 11 December 2019 as a nominal date for a trial fixture to be made. On 11 December 2019 the appellant appeared and was self-represented. Judge Ingram noted that the appellant declined an offer that a lawyer be appointed to represent him. The matter was then adjourned for a two hour trial fixture on 13 February 2020. However, on 13 February 2020 because the prosecution witnesses were unavailable the matter was adjourned to 26 March 2020. Judge Field, who presided, made an order for the appointment of counsel to assist. On 25 March 2020 the matter was further adjourned by reason of the first nationwide COVID-19 lockdown, and it was rescheduled for 26 June 2020 as a nominal date for the allocation of a Judge-alone trial fixture. On 12 June 2020 the Registrar set the trial down for 1 July 2020 and vacated the call-over scheduled for 26 June 2020.

• [27] From my review of the District Court file it appears that the appellant’s trial was adjourned four times before it proceeded on 1 July 2020. On the first occasion it was set down as a back-up fixture and did not proceed.¹⁷ On the second occasion it was adjourned after the appellant raised an issue relating to prosecution disclosure that it appears had not previously been raised.¹⁸ Those fixtures were followed by two hearing dates when the appellant failed to appear at court when required, resulting in warrants for his arrest being issued and the matter being adjourned.¹⁹ On the third occasion the trial was adjourned because the prosecution witnesses were unavailable.²⁰ On the fourth occasion²¹ the trial was adjourned because of the COVID-19 lockdown resulting in the trial being rescheduled by the Registrar for the trial fixture of 1 July 2020.

• [28] The appellant relies generally on s 25 of NZBORA without specifying any particular right or rights. Section 25 relevantly provides:²²

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

¹⁷ 10 June 2019.

¹⁸ 22 July 2019

¹⁹ 21 October 2019, and 27 November 2019.

²⁰ 13 March 2020

²¹ 25 March 2020.

²² New Zealand Bill of Rights Act 1990.

(a) The right to a fair and public hearing by an independent and impartial court;

(b) The right to be tried without undue delay.

...

• [29] In R v Harmer the Court of Appeal said: ²³

[130] The Bill of Rights guarantee of a trial without undue delay often overlaps with and supports the guarantee of a fair trial (s 25(a)) but it is a distinct right whose purpose is also to minimise pre-trial restraints (imprisonment or restrictive bail conditions) and to minimise other personal disadvantage as well as anxiety for someone who is entitled to be presumed innocent until guilt is established by verdict at a trial.

• [30] While the total time between the appellant’s first court appearance on 2 October 2018 on the charges, to the Judge-alone trial on 1 July 2020 at which he was convicted was one year and eight months, apart from complaining about fact of the delay, significantly, the appellant does not claim to have been prejudiced by that delay.

• [31] The question of whether a trial is unfair, requires an assessment to be made in relation to the trial overall. In Condon v R the Supreme Court explained:²⁴

[78] It is important to remember that ... the assessment of the fairness of a trial is to be made in relation to the trial overall. A verdict will not be set aside merely because there has been irregularity in one, or even more than one, facet of the trial. It is not every departure from good practice which renders a trial unfair, as Lord Bingham made clear in a passage in Randall, which was referred to with approval in Howse. He said that it is at the point when the departure from good practice is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe. In Howse it was said that this approach is one of general application.

(footnotes omitted)

• [32] The Supreme Court in CT (SC88/2013) v R²⁵ endorsed the Court of Appeal’s explanation in R v O²⁶ of the significance of delay where it is said to have affected a defendant’s right to a fair trial and the principles applicable to the granting of stays. While both cases concerned allegations of historical sexual offending, the principles

²³ R v Harmer CA324/02; CA 352/02, 26 June 2003.

²⁴ Condon v R [2006] NZSC 62 at [78]. ²⁵ CT (SC88/2013) v R [2014] NZSC 155 ²⁶ R v O [1999] 1 NZLR 347 (CA).

are equally applicable to the consideration of the effects of delay in other contexts. The Court of Appeal in R v O said:²⁷

Some prejudice to an accused is always likely when a prosecution is brought long after the event. There is an obvious inherent problem of memory for witnesses and accused alike. There will be occasional cases where the lapse of time is so exceptionally long that it will clearly be impossible to have a fair trial. But ordinarily passage of time alone will not be sufficient to found a successful application to have a prosecution stopped. Avoidance of prosecution for a period does not diminish the criminal nature of the act alleged against an accused, though the advanced age of a defendant may have to be taken into account in sentencing if there is a conviction. As the judge observed, there is no limitation period and no presumption that after a particular time memories will be too unreliable for the purposes of a criminal trial. Whatever the length and cause of delay, the central question is whether a fair trial can still take place in the particular circumstances. Are important defence witnesses no longer available? Have relevant documents been lost or disposed of? ...

• [33] The Supreme Court added:²⁸

In determining a stay application, a judge should always bear in mind that the burden and standard of proof provide substantial protection for a defendant as does the obligation of a trial judge to take all appropriate measures to mitigate the risk of prejudice.

• [34] In Du v District Court, Winkelmann J considered an application for judicial review of a decision of the District Court declining to order a stay in a case where the defendant, who was facing serious assault charges, and had previously been required to appear at nine post-deposition call-overs and had been remanded to a tenth call-over. Justice Winkelmann noted that the rationale of s 25(b) of NZBORA goes beyond the traditional or narrow sense of prejudice, but observed that if actual prejudice to a defendant’s right to a fair trial caused by lengthy delay can be shown it is a relevant consideration. She said: ²⁹

[29] However, the prejudice to which a Court may have regard when considering an application under s 25(b) is not limited to prejudice to the right to a fair trial. That follows from the values underpinning s 25(b) referred to above. The Court of Appeal in Harmer therefore accepted that delay that has no appearance of prejudicing the fairness of a trial can become undue because of the elapsing of too long a period of time after the laying of a charge.

²⁷ R v O [1999] 1 NZLR 347 (CA) at 350.

²⁸ CT (SC88/2013) v R [2014] NZSC 155 at [27]

²⁹ Du v District Court at Auckland [2005] NZHC 276; (2005) 22 CRNZ 505 at 514 [29]

• [35] Justice Winkelmann found that the unavailability of three witnesses would cause prejudice to the defendant, and the absence of cross-examination would be material and potentially prejudicial to the defendant.³⁰ In the context of addressing the question of the appropriate remedy she said:³¹

Previously prejudice to the accused was treated as an almost de facto requirement before a breach of s 25(b) was found: see for example R v Grant; R v Palmer; and R v Dow. The concern was mainly with any prejudice the accused’s right to a fair trial. ...The corollary of such an approach is that any breach of s 25(b) will necessarily entail a breach of the fair trial right enshrined in s 25(a). However, such an approach fails to recognise that s 25(b) creates a “distinct” right which does not strictly require prejudice to the accused ( recognised recently in R v Harmer). With a more flexible remedy the Courts will not be as loath to find a breach of s 25(b) where there is an absence of prejudice to the fair trial right which the applicant can easily point to. Section 25(b) can therefore be given independent recognition based on delay alone, rather than the presence or otherwise of prejudice in its narrow sense.

(footnotes omitted)

• [36] Justice Winkelmann found that the delay, which amounted to 606 days, was “substantial and unacceptable”, for a case of its kind³² and made an order staying the prosecution. She said however:

• [76] I record that it prejudice was not made out in this case I would have been inclined to declare a breach of s 25(b) and order that the trial be heard by a certain date in the very near future ) of course, bearing in mind that such an order would take 8 weeks to implement).

• [77] For completeness, I also record that absent prejudice, I would not have regarded the delay of such an order or the prosecutor’s breach of professional duty so serious as to justify a stay ( see para 66 above).

• [37] Although the delay in the present case is marginally longer than the delay in Du, here there is no specific prejudice to the appellant caused by the delay resulting from the succession of adjournments. While the presence or absence of specific prejudice is not determinative, it nevertheless remains a relevant factor.

• [38] The delay that occurred was due in part to systemic and administrative matters, but it was also contributed to by actions taken by the appellant himself in making a

³⁰ At [51]

³¹ At [74] (1).

³² Du v District Court at Auckland HC Auckland CIV-2005-404-355, 23 November 2005 at [35] and [52].

late application for an order for further prosecution disclosure, and by failing to attend court on two occasions when he was required to. The prosecution was unable to proceed on 13 February 2020 when the prosecution witnesses were unavailable, and the trial scheduled for 26 March 2020 was necessarily adjourned by reason of the nationwide COVID-19 lockdown commencing on 25 March 2020. Having regard to the duration of and contributing causes to the delay, I find that there was no breach of s 25(b) of NZBORA.

• [39] Having reviewed the trial transcript I am satisfied that the appellant was not prevented from advancing a defence of self-defence. He did raise the issue of self- defence or trespass with the complainants and prosecution witnesses in the course of cross-examining them, and there was accordingly no evidence whatsoever upon which the Judge could have addressed and determined whether a defence of self-defence had been established. To the contrary, having heard and accepted the complainants’ account of the incident, there was ample evidence on which the Judge could found his conclusion that the appellant had committed all three of the offences with which he was charged. Furthermore, it is not clear how the issue of trespass would be relevant to the determination of the charges, the evidence for which related to the appellant’s conduct. Where that conduct occurred in terms of location would not have been relevant.

• [40] I reject the appellant’s claim that his trial was unfair because he was denied a McKenzie friend and was “supplied a lawyer instead.” The Court had previously enquired whether the appellant wished to arrange a lawyer and he said he did not. The Court then arranged the appointment of an amicus curiae to assist the appellant. Counsel appointed as amicus curiae was a qualified and experienced lawyer who was in a position to provide effective assistance to the appellant. It was up to the appellant to take any such advice. A McKenzie friend would not have been in a better position to assist the appellant than the lawyer assisting him in the role of amicus curiae.

• [41] I also reject the appellant’s claim that he was “denied the right to examine witnesses for the prosecution.” It is clear from the trial transcript that he cross- examined the prosecution witnesses, and the Judge afforded him considerable leeway in doing so.
• [42] I accordingly find that the appellant has failed to show that his trial was unfair in any way or that the Judge erred in any of the respects he has alleged, and there having been no breach of his right to be tried without undue delay I find that there was no error, irregularity or occurrence in relation to his trial that has created a real risk that the outcome of the trial was affected, or that resulted in an unfair trial.

• [43] For those reasons, I shall dismiss the appeal.

Result

• [44] The appeal is dismissed.

Paul Davison J