The decision of Judge Behrens QC begins with the words "This case has taken some unusual turns."
Yesterday's hearing of the application by the Crown Prosecutor bore a remarkable similarity to that of the charges heard by Judge Behrens. The hearing of those charges was stopped and the summarily laid charges withdrawn when it became obvious that the officer in charge of the case was about to commit perjury. I was later acquitted on the indictable charges also.
Yesterday the Crown made a formal application to the Court under Section 344(A) of the Crimes Act for an order to have Constable Laura Rhymer's evidence ruled admissible in the current proceedings, regarding the matter of the charge of Escaping from Custody.
The result of the hearing was that not only was her evidence called into question, but the charge itself was dismissed. Such a dismissal is deemed to be an acquittal.
344A Interlocutory order relating to admissibility of evidence
(1) Where any person is committed for trial and—
(a) the prosecutor or the accused wishes to adduce any particular evidence at the trial; and
(b) he believes that the admissibility of that evidence may be challenged,—
he may at any time before the trial apply to a Judge of the court by or before which the indictment is to be tried for an order to the effect that the evidence is admissible.
(2) The Judge shall give each party an opportunity to be heard in respect of the application before deciding whether or not to make the order.
(3) The Judge may make an order under this section on such terms and subject to such conditions as he thinks fit.
(4) Nothing in this section nor in any order made under this section shall affect the right of the prosecutor or the accused to seek to adduce evidence that he claims is admissible during the trial, nor the discretion of the Trial Judge to allow or exclude any evidence in accordance with any rule of law.
This Crown application was a pre trial matter to decide this particular issue of the interlocutory application regarding the admissibility of the evidence regarding the actual arrest, prior to the Jury Trial. The result at the end of the day was that I was deemed to be acquitted of the charge entirely.
The day started off well with the train trip, the train managers on the Wairarapa line were as wonderful as ever - true ambassadors of good will, the conductors are always polite, helpful, cheerful, great at dealing with people, they're always a pleasure.
And then, Court. "A Section 344(A) application was filed by the Crown in response to a letter dated 12 February 2010 from the amicus curiae in this matter objecting to the admissibility of evidence.
The objection relates to the second charge of escaping lawful custody and in particular the "admissibility/or validity of the Bill of Rights and arrest procedure on the Escaping Custody charge." It is anticipated the objection will be on grounds that the accused was not in lawful custody, and relies on the evidence of Constable Laura Rhymer." said the Application.
I was met at the Court by Anne Smith, a thoroughly nice lady who I met when I first came to the Wairarapa, who works for the Corrections Department (Prison Service or something like that). Anne was kind and helpful and gave me really good advice, looked after me really well, as always. Thanks Anne.
Then ex Mayor of Cartoontown and Official Village Idiot Gary McPhee and some of his friends were evicted from the Court, which was good, especially given the outcome of his trespass charges against me - which were dismissed after the Judge agreed with my lawyer that he had no authority to evict me from the Council meeting he was presiding over in the usual bully boy manner. Wellington Court staff were all good, as usual, and Judge Barry presided again.
Crown Prosecutor Ms Ewing called Constable Laura Rhymer, who gave her evidence. Constable Rhymer to her credit said truthfully that I had come into the station to make a number of complaints about recent matters and that she had had previous dealings with me and had refused to take any of my complaints. She said that she refused to discuss my complaints, and that she wanted to talk to me about something else and that "we could go to the Masterton police station to discuss it" (p3), and on page 8 and 9: " I then said that I needed to speak to her in relation to another matter and that we'd go the Masterton Police Station to make that statement". As opposed to, "You are under arrest, you have the right to remain silent," etc.
Constable Rhymer got a bit carried away in some of her other evidence, but she she was cross examined by me (well, sort of - Judge Barry was helpful and patient) and then Mr Yeoman the amicus curiae, then further cross examination by me, then re-examination by Ms Ewing.
Ms Ewing was very helpful in providing me with all sorts of other case decisions about a Mr Abdulkadir Juma Ahmed and a prostitute called Ginger, which is truly, luridly, sordid (and filmed on 'Ginger's cellphone apparently), this arrived the day before the hearing, and I read the whole thing - all thirty or so pages - wondering what on earth they had sent it to me for, and others: R v P, Burgess v R, Ballantyne v Police, Hotene v Police, etc, which were being discussed. I was trying very hard to follow it all.
Ms Ewing said there were two elements at issue: Firstly, whether or not I was in custody, which was a question of fact and an issue for the jury to decide regarding the "determination of whether the conduct objectively viewed by words or conduct would reasonably inform the subject they were not free to go."
The second element was whether the "arrest" was lawful, which was a question of law.
She referred to a Court of Appeal decision, Burgess v R, and two issues regarding that matter, firstly the police officers conduct, and secondly whether there was submission or acquiesence to the alleged arrest. She put it to the Court that no particular words were necessary to effect an arrest, just the police officers conduct generally. She agreed that Constable Rhymer had not given me my rights, and acknowleged other facts. I think it was Ms Ewing who raised the matter of Section 347.
The amicus curiae also spoke about Section 347.
Then Judge Barry spoke about Section 347 and culpability. I didn't know what Section 344 or 347 said at that time. Judge Barry said that at Depositions on 20 November 2009 I had been committed for trial by two Justices of the Peace. I don't think he mentioned the hearing on the 8th December when Constable Rhymer didn't turn up because she'd applied for annual leave two days earlier, but he did mention the wrongful issuing of the warrant for my arrest on 16th February 2010, which resulted in my illegal imprisonment on 22nd and 23rd February 2010.
I raised the issue of the hearing on the 8th December in more detail and Judge Barry listened and asked questions. Then he talked about a discharge due to the low level of culpability under section 347 rather than 344 because my objection was based on the assertion that I was never lawfully arrested.
Judge Barry said that the background to the allegation was that a series of events on 8th April 2009 saw police considering Perverting the Course of Justice charge based on the premise that I had inveigled Aaron Brook to make a statement that Michael Murphy had burgled my house. Constable Rhymer says that Brook later retracted his statement and said that I made him say something that wasn't true. The escalation arose, Judge Barry said, when I arrived at the Carterton Police Station at ten to eight on the morning of the 17th April 2009 to make complaints about a number of matters. The exchange that followed subsequently led to the Escaping from Custody charge.
Judge Barry said 'the Crown case is that when Constable Rhymer gave evidence in her depositions about what happened at the police station, she advised Katherine Raue that she needed to speak to her. She never formally laid hands on the accused. It was an emotionally charged situation and Constable Rhymer had maintained a reasonable space."
Judge Barry then said that I had made my position crystal clear by putting a set of propositions: that the officer never actually said that I was under arrest, that she had merely said that she wanted me to go to Masterton with her, that I couldn't understand why that was (given that I had gone there to make complaints after having phoned about them the previous day), and that in fact I thought that the arrest hadn't happened (which was perfectly logical and understandable to any reasonable person, including Judge Barry thankfully). He said "Ms Ewing submits and I accept that the charge contains key elements including whether at the time Katherine Raue left the station she was in lawful custody. That would depend on evidence she had been arrested. There is a question of fact and a question of law." (I made notes and this is to the best of my recall) The question of fact was about whether the officers conduct, objectively viewed reasonably informed the subject of the arrest. He referred to Hotene v Police and Ballantyne v Police. Then he said that looking at the question of fact it can only be an issue of fact that is appropriate for a jury to consider.
"But the matter does not end there" he said.
"Firstly, there is a clear picture that the alleged offending was at the lower end of the spectrum of culpability of escaping from custody charges, and moreover, a dislocation of proceedings led to unfortunate, and unlawful, consequences. Now I need to set out my understanding of this" he said. "The Crown framed an indictment . . . "
My notes are incomplete at this point due to the fact that I was having a bit of difficulty trying to think, talk and write notes all at the same time, and Judge Barry was allowing me to explain things to him so I was concentrating on trying to do so clearly and concisely. We discussed the manner in which the Crown had framed the indictment, and tried to separate the charges, which had been rejoined by Judge Behrens QC on 8th December when Constable Rhymer had failed to turn up to Court, and applied for annual leave two days before the hearing - much to everyone's disgust - why has she not been charged with contempt of Court?.
"Unfortunately, that fact was never acted upon in respect of the summary charge which lay in the Masterton Court and was never withdrawn." I believe it was withdrawn, on 8th December, and not recorded by Court staff. "Unbeknown to the Crown, the amicus curiae, or Katherine Raue the summary charge still lay in the Masterton Court and was proceeding on it's own course. A bench warrant was issued for the arrest of Katherine Raue on the 16th February and she was arrested on the 22nd and taken to Arohata and had money taken which has apparently not been returned." My notes are brief and incomplete, so I will type them as they are written rather than try and fill in the gaps where I can't remember exactly:
This particular part of jurisdiction to discharge
Ms Ewing sets out Crown position, responsibly accepts the low end culpability
acknowledging confusion, penalty would be nominal
Go to jury: (1) Jury accepted arrest? (2) Evidence of acquiesence?
Secondly, and allied with the low end culpability bit is the consequences already visited.
This rare use of S 347
no useful purpose
R v Harrington: p 763 Judge Casey p 764
No guidelines as to how discretion applied.
Judge Barry then commented on R v Matenga in the High Court in Gisborne, 5 October 2006, in which Justice Baragwanath referred to Harrington in a case with an unusual combination of (1) Thinness of the Crown case, (2) Process failure, and (3)The likelihood of further publicity for a political issue (occupation of land in that case). Refusal to commit was commented on.
"I consider this case falls within the threshold required and a discharge is appropriate.
Core culpability is the Perverting the Course of Justice charge and this charge has arisen as a sideshow to that. The conduct alleged is at such a low end of offending I cannot see it going to trial.
The accused is discharged on Count 2.
347 Power to discharge accused
(1) Where any person is committed for trial, the Judge may, in his discretion,—
(a) of his own motion or on the application of the prosecutor or the accused; and
(b) after giving both the prosecutor and the accused reasonable opportunity to be heard on the matter; and
(c) after perusal of the depositions and consideration of such other evidence and other matters as are submitted for his consideration by the prosecutor or the accused—
direct that no indictment shall be filed, or, if an indictment has been filed, direct that the accused shall not be arraigned thereon; and in either case direct that the accused be discharged.
(2) Where an indictment is filed by the Attorney-General, or by any one with the consent of the Attorney-General, under subsection (3) of section 345, the Judge may in his discretion, after perusal of the statements of the witnesses for the prosecution, or after hearing those witnesses, direct that the accused shall not be arraigned on the indictment, and direct that he be discharged.
(3) The Judge may in his discretion, at any stage of any trial, whether before or after verdict, direct that the accused be discharged.
(3A) Every direction under this section shall be given in open court.
(4) A discharge under this section shall be deemed to be an acquittal.
(5) The provisions of section 106(3) of the Sentencing Act 2002 shall extend and apply to a discharge under this section.
(6) Nothing in this section shall affect the power of the court to convict and discharge any person.
So Constable Laura Rhymer will give evidence on the charge of Perverting the Course of Justice, and on the charge of Escaping from Custody a discharge under Section 347 is deemed to be an acquittal. This is remarkably similar to the decision of Judge Behrens QC, which resulted in the submissions to the Police Complaints Authority from lawyer Michael Appleby, after the trial was stopped when it became apparent that the officer in charge of the case was going to commit perjury, by dishonestly saying he arrested me at a public meeting in front of over a hundred witnesses, many of who were prepared to swear to the fact that he hadn't arrested me at all, just assaulted me for no reason and falsely imprisoned me all night and wasted thousands of dollars of tax payer's money pursuing a number of corrupt prosecutions based on perjurous "evidence". The trial was stopped after evidence was given by the police themselves that I hadn't been arrested at all.
The only bad bit was having to cycle home from Featherston in the rain after I missed the last train, but on the bright side, at least I didn't get a puncture. Many thanks to the three kind people who gave me a lift from Wellington to Petone, Petone to Upper Hutt, and Upper Hutt to Featherston.
Next call over date 2 November 2010 at 2:15. New Zealand tax payers should be disgusted at this corrupt waste of money and resources pursuing the malicious vendetta of a couple of corrupt local police officers.