IN THE COURT OF APPEAL OF NEW ZEALAND
CA305/2013
[2014] NZCA 495
BETWEEN
JACOBUS VAN DER LUBBE
Appellant
AND
THE QUEEN
Respondent
Hearing:
9 September 2014
Court:
Ellen France P, MacKenzie and Andrews JJ
Counsel:
Appellant in person
M J Lillico for Respondent
Judgment:
8 October 2014 at 2.15 pm
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France P)
Introduction
[1]
The appellant, Jacobus van der Lubbe, was convicted after a jury trial of one
count of threatening to do grievous bodily harm and one count of threatening to kill.
Both charges relate to the same complainant. Mr van der Lubbe was fined $1,000 on
each count by the trial Judge, Judge Cameron.1 He appeals against conviction and
sentence.
1
R v van der Lubbe DC Wanganui CRI-2012-083-402, 29 April 2013.
VAN DER LUBBE v R CA305/2013 [2014] NZCA 495 [8 October 2014]
[2]
The focus of the conviction appeal is on various ways in which Mr van der
Lubbe says the trial Judge was biased against him so as to give rise to a miscarriage
of justice. Mr van der Lubbe says the sentence is manifestly excessive. We deal
with the conviction and sentence appeals after setting out the background.
Background – a dispute between neighbours
[3]
Mr van der Lubbe and his neighbour, Mr Poynter, live in Wanganui.
Mr Poynter in his evidence said that part of his property was residential but “a good
85%” was rural. Mr van der Lubbe told us the properties were residential with a
rural aspect.
[4]
As Judge Cameron said in sentencing, the background to the charges lies in
Mr van der Lubbe’s ongoing dispute with Mr Poynter about Mr Poynter’s use of
firearms on Mr Poynter’s property.2 As a means of trying to resolve the dispute, an
agreement was made whereby Mr Poynter would advise the police when he was
about to use his firearms.
[5]
The Crown case was that on 3 August 2011, Mr Poynter advised the police of
his intention to use a firearm. Mr van der Lubbe was not advised. Mr Poynter used
his firearm. Mr van der Lubbe made a 111 call reporting the use of the firearm next
door. When Mr van der Lubbe was told the police had been advised Mr Poynter was
going to use his firearm, the following exchange took place:
2
VDL
[Mr van
der Lubbe]
That I am going to carry out my threat now, I am going
to buy my own firearm and I am going to use it to disable
my neighbour.
Comms
Well why would you do that?
VDL
Because, I, I’ve warned the Police already
Comms
Yes.
VDL
and that’s what I’m going to do. You just convey that
message to the Police in Whanganui, that’s what I’m going
to do, alright?
Comms
Okay, so you want to spend the rest of your life in jail just
because someone’s
At [2].
VDL
[6]
That doesn’t worry me, that doesn’t worry me, I’m sixty
now and I’ve had a gutsful, I am going to buy a firearm and
I’m going to use it to disable my neighbour, okay. Goodbye.
A similar set of events occurred on 23 August 2011. Mr Poynter advised the
police he was going to use the firearm but Mr van der Lubbe was not advised. At
about 2.40 pm that day Mr van der Lubbe rang 111 stating he had heard a gunshot.
The call centre later rang Mr van der Lubbe and left a message explaining that the
gunshot sound was due to Mr Poynter shooting a pig. Mr van der Lubbe rang 111
again and the following exchange transpired:
[7]
COMMS
…you’ve rung through on the triple one line so it’s ah…
HS
[Mr van
der Lubbe]
You’re fucken, fucken useless fucken cops. (Shouting).
COMMS
Do you want us to send them round to you Jack?
HS
You’re just fucken useless, I’m gonna buy me own gun I’m
gonna kill that [c..t].
At trial, Mr van der Lubbe represented himself. He did not deny he made the
calls or that he used the words identified. Rather, he relied on provocation and
self-defence. He gave evidence. In the course of his evidence he said that by
making the telephone calls he was “laying a paper trail” and he “wanted to be
arrested” so he could tell his story in court and “the gunshots would be stopped
permanently”.
[8]
Judge Cameron told the jury it was not open to them to consider self-defence
and that provocation was not a defence although it could be relevant at sentencing.
Issues on conviction appeal
[9]
Mr van der Lubbe raises various matters which he says illustrate bias on the
part of Judge Cameron. However, the key concerns underlying these complaints
relate to what the jury was told about self-defence and provocation. In particular, the
direction that self-defence was not open to Mr van der Lubbe and that provocation
was only relevant to sentence. Accordingly, because this is really the substance of
Mr van der Lubbe’s arguments, we focus on these two aspects and deal only briefly
with the other matters he raises.
Self-defence and provocation
[10]
An important plank in Mr van der Lubbe’s argument derives from a pre-trial
ruling of Judge McElrea.3 Judge McElrea was dealing with two Crown applications
to set aside witness summons. In the course of the ruling Judge McElrea said that
evidence to show what Mr van der Lubbe described as a “pattern of police
malfeasance” could be relevant at trial.4 The Judge said that he “cannot rule out
[Mr van der Lubbe’s] submission that he is seeking to prove such a well established
pattern of malfeasance that he was ‘forced’ (his word) to make these threats”.5
[11]
Judge McElrea went on to say:
[31]
Of course what the jury will have to decide, if the defence is left to
them to decide, is the state of affairs as the accused believed it to be. The
truth or falsehood of his “pattern of malfeasance” view is (strictly speaking)
irrelevant to that inquiry. I therefore have considered whether, on this basis,
evidence of the truth of that view is irrelevant and inadmissible, but have
concluded otherwise. The accused must be allowed to show the truth of
some key parts of this “pattern” if he wishes to – although it could be
counterproductive – in order to persuade the jury that he actually held that
view – that is, that it was part of the circumstances as he believed them to be.
[12]
Mr van der Lubbe submits that Judge Cameron’s rejection of self-defence is
inconsistent with Judge McElrea’s ruling and demonstrates bias on the part of
Judge Cameron.
We interpolate here that Judge McElrea foreshadows the
possibility, in the passage we have cited above, that the defence will not be left to the
jury. Mr van der Lubbe also says he was left at a loss once he knew self-defence
would not be put to the jury.
[13]
We see no merit in Mr van der Lubbe’s argument on this aspect.
Judge Cameron was correct to refuse to let self-defence go to the jury. The factual
narrative did not support the defence. Mr van der Lubbe was not acting in defence
of himself or another but rather out of concern that otherwise no action would be
3
4
5
R v van der Lubbe DC Wanganui CRI-2010-083-402, 24 August 2012. The year in the file
number is actually 2012.
At [29].
At [30].
taken by the police to stop what he saw as intimidation by Mr Poynter. His concern
was at matters such as the use by Mr Poynter, on Mr van der Lubbe’s account, of a
higher calibre gun than a .22. As Mr van der Lubbe put it in evidence:
… I decided that I would get myself arrested by uttering the kill word in the
hope that all the dangerous provocations would stop.
…
I was trying to get arrested to stop the gunshot.
[14]
He also said that he had decided that the first call, to the effect that he was
going to “disable” Mr Poynter, “wasn’t going to do, wasn’t going to do the job” and
hence he made the later call on 23 August.
[15]
We add to complete the narrative that in his evidence Mr van der Lubbe said
that the shooting had stopped. On his account, this was because Mr Poynter was
“happy as Larry” that Mr van der Lubbe had been charged.
[16]
In addition, the force (or threat of force) used was not reasonable in the
circumstances.
[17]
Mr van der Lubbe was in any event permitted to give evidence of the key
features he would have had the jury rely on. As Mr Lillico notes, Mr van der Lubbe
gave evidence of his belief that Mr Poynter shot four of Mr van der Lubbe’s deer that
had got out of their enclosure; that on an earlier occasion he had been shot at on his
account by Mr Poynter and called 111 on his cellphone as he lay flat on the ground;
and his belief that Mr Poynter shot his cat.
[18]
As a matter of law, Judge Cameron was also correct that provocation was not
a defence. Mr van der Lubbe does not advance any other possible defence. The
Judge’s directions did not indicate bias.
Other matters
[19]
bias.
We now briefly discuss other matters Mr van der Lubbe relies on to show
Time to prepare defence
[20]
Mr van der Lubbe sought a deferral of the trial date to give him further time
to prepare his case.
Judge Cameron initially declined to adjourn the trial but
ultimately did so. There is no complaint from Mr van der Lubbe about the adequacy
of the amended trial date in terms of his preparation. Against that background, bias
on the part of the Judge is not established.
Witnesses
[21]
Two points are made here. First, Mr van der Lubbe said he was asked to
advise the names of his witnesses and secondly, he was disadvantaged when three of
his witnesses did not attend. There is nothing on the record about the former point.
As to the second, it appears that three witnesses did not show up. However, no steps
were taken by Mr van der Lubbe in relation to that. For example, no application was
made for an adjournment and nor was there an application for a warrant to ensure
attendance. Mr van der Lubbe says he did not know about the latter option. That
may be so but this is not a basis for suggesting bias on the part of the Judge. There is
also nothing to suggest that these witnesses’ evidence would have been material.
Failure to appoint counsel assisting
[22]
Mr van der Lubbe says bias is indicated by the failure of the Judge to appoint
counsel assisting and to advise Mr van der Lubbe to obtain legal advice.
[23]
As to the latter, Judge McElrea in his ruling prior to trial urged
Mr van der Lubbe to get a lawyer. The Judge said this:
[42]
So nothing that I have said here means that [Mr van der Lubbe] is
deprived of the opportunity to present his defence. But I do urge him to
engage counsel because these issues of practice and procedure of the court,
and issues of evidence, are in many ways technical issues on which the
advice and assistance of a qualified lawyer is of great benefit. If
[Mr van der Lubbe] is to have any real prospect of success, I suggest to him
as a final note that he would be well advised to use the services of a lawyer.
[24]
The failure to appoint counsel assisting is not an indication of bias. This
Court in R v McFarland said:6
[53]
… the appointment of amici in criminal cases should be rare. Where
an accused indicates that he or she wishes to represent him or herself, the
court should ensure that he or she is aware of the right to counsel and of the
availability of legal aid. The accused should be afforded an adequate
opportunity first, to consider whether to take advantage of those rights and
second, to exercise them if that is what he or she wants. But it is important
not to overlook that accused persons have the right to present their defences
personally. … As this Court emphasised in R v Cumming [2006] 2 NZLR
592 at [40]–[46], the right to self-representation is an important right, the
purpose of which is to “affirm the dignity and autonomy” of accused persons
in addressing criminal charges.
[54]
Accordingly, if, having been appropriately advised and given
sufficient time …, an accused chooses self-representation, that choice must
be respected, and the accused must live with its consequences.
[25]
We add here that there is no issue about Mr van der Lubbe’s knowledge of
the availability of legal aid.
[26]
In these circumstances, there cannot be any criticism of Judge Cameron’s
approach.
Various exchanges with the Judge
[27]
Mr van der Lubbe points to the Judge’s observation in a judgment declining
to recuse himself to this effect:7
[9]
Mr van der Lubbe. I will say this to you now, I expect you to
conduct yourself with proper decorum throughout this trial, and that includes
not interrupting a Judge when he is making a decision, and if you do not
conduct yourself with proper decorum, you can expect me to hold you to
account and I do not think that would be necessarily in your interests in front
of a jury, so you will show proper courtesy and respect to the Court process
throughout this trial.
[28]
There are indications on the record of Mr van der Lubbe arguing with the
Judge. For example, in his ruling of 12 March 2013, there are various interpolations
6
7
R v McFarland [2007] NZCA 449 (citation omitted).
R v van der Lubbe DC Wanganui CRI-2012-083-402, 11 March 2013.
apparently from Mr van der Lubbe indicating he was arguing while the Judge was
delivering his judgment.8 For example:
[1]
Mr van der Lubbe we need to keep the trial focused on the issues
which is the charge you are facing, [Mmm], right? [Yeah]. … I am not going
to permit you to flesh it out, if you like, [why not?] by going back to the
[otherwise it’s just hollow words], old incidents because again it is a
distraction for you to go into detail about how you have gained that mistrust
and it is, therefore, irrelevant to the charges. [Irrelevant, I hate that word, I
hate that irrelevant word]. Well you may but that is a word that the Court
has always used because trials have to run efficiently and that means only
evidence relevant to the issues is admissible in law. [That fact that I’ve been
treated like crap for 25 years, I’m not able to explain why?]
[29]
The record suggests that the Judge was properly ensuring that the conduct, in
the context of a jury trial, was not going to disadvantage Mr van der Lubbe. The
same comment applies to other similar criticisms made by Mr van der Lubbe.
[30]
Mr van der Lubbe is also critical of the Judge’s failure to stop him from
giving evidence about previous convictions. This criticism relates to evidence from
Mr van der Lubbe when he postulated that the jury might be wondering why the
police were “acting in such a biased and an obstructive manner” towards him. He
said he would turn back the clock and explain. He continued:
In 1987 I made the life changing mistake of making a complaint against
policemen. After having my home invaded by a mob of cops looking for
non-existent illegal drugs, I tried to get redress against the person who had
made the false allegation against me.
[31]
Mr van der Lubbe went on a little further talking about various false
allegations involving drugs made by a Mr Cornelius against him. At this point, the
Crown prosecutor objected querying the relevance of this evidence. Judge Cameron
then asked Mr van der Lubbe what it was he was trying to say. Mr van der Lubbe
responded that he was trying to say that the police were treating him in the way they
did because of the lies in his police file.
The Judge said he thought
Mr van der Lubbe had made his point, to which Mr van der Lubbe responded: “Not
yet I haven’t.”
8
R v van der Lubbe DC Wanganui CRI-2012-083-402, 12 March 2013.
[32]
Again, we see nothing in this other than the Judge trying to maintain some
control over matters of evidence and relevance.
[33]
Mr van der Lubbe also points to an exchange with the Judge about a
defibrillator as a further indicator of bias. There is no evidence that the exchange
happened in the way alleged.
Decisions in the course of trial
[34]
Mr van der Lubbe is critical of various decisions made by the Judge in the
course of the trial and at what he says was deliberate delay in dealing with an
application about the admission of some documents. To illustrate the first criticism,
Mr van der Lubbe had some photographs he wished to show to the jury on the
computer. He also said he was prevented during the playing of the 111 call from
being able to point out to the jury that the gunshot sound was not that of a .22 calibre
rifle. There is a further complaint about a restriction on the use of documents.
[35]
None of these matters relate to anything of particular relevance to the trial.
They do not demonstrate bias on the part of the Judge but rather a concern to keep
matters focused on what was relevant and maintain some control. Similar comments
can be made about allegations of bias based on the Judge’s failure to intervene with
respect to alleged misconduct by the prosecutor.
Sentence appeal
[36]
We accept the submissions for the Crown that the fines imposed were within
range.
[37]
The only potential issue Mr van der Lubbe can raise relates to the impact of
provocation. The Judge makes no mention of that issue in sentencing. In summing
up the Judge had explained that, “if accepted”, provocation would have to be taken
into account in imposing any penalty. Perhaps, as Mr Lillico submits, the Judge
decided that hearing shooting in the area was not something that could amount to
provocation.
In any event, there can be no criticism of the end result.
Mr van der Lubbe was charged with two offences carrying seven years imprisonment
as a maximum.9
Mr van der Lubbe had been offered the opportunity before
proceeding to trial of a 12 month good behaviour bond on a guilty plea but decided
to proceed to trial. In the circumstances, the imposition of fines of $1,000 for each
conviction was well within range.
Result
[38]
For these reasons, the appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
9
Crimes Act 1961, s 306.