You are on page 1of 8

In the District Court of New Zealand Kaitaia Registry


Under the Summary proceedings act 1957 in the matter of lawful dispute Between And NZ Police (informant) Simon Eru Kaiwai (defendant)

Application to discharge

Simon Kaiwai Representative for the defendant Phone 09 408 5 408 1195 Oruru Rd Kaitaia

Page 1

Application to discharge 1. The following is an application without notice and certificate as applicant is unrepresented and therefore has no lawyer to provide a certificate. The applicant believes that the dispensation of this application is required for justice to prevail in the case. 2. For the consideration of the presiding judge and immediate notice of the prosecution. 3. The defendent makes an application to discharge under the Crimes Act s347 Crimes Act 1961 s347 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 accuseddirect 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. (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. 4. This applicant recognises the judges ability to discharge of own motion as per Crimes Act 1961 s 347 and seeks honourable intervention so 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. 5. The matters are outlined in the defendants affidavit (deposition) and evidenced in the annexed exhibits. 6. This includes: REASON A/ Interpolated court documents and irregular inclusion of prosecution statements (by Hayden Nicol and David Reynolds). Background:

Page 2

7. The Defendant was called to appear for a hearing under the Criminal Procedure (Mentally Impaired) Act 2003 section 14 on Feb 18 2010.

S(14) Determining if defendant unfit to stand trial

(1) If the court records a finding of the kind specified in section 13(4), the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired. (2) If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and (a) give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and (b) find whether or not the defendant is unfit to stand trial; and (c) record the finding made under paragraph (b). (3) The standard of proof required for a finding under subsection (2) is the balance of probabilities. (4) If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must commence or continue the hearing or trial, or commit the defendant for trial, as the case may require.
17. Section 14(1) of the act was conditional on S13(4) being met.
13 Outcome of consideration of defendant's involvement

(4) If the court is satisfied of the matter specified in section 9, the court must proceed to determine the matters specified in section 14. 18. The defendant pointed out at this 18 Feb 2010 hearing that the required s(9) hearing had not taken place. It would have been much like the former Soviet Russia to forcibly hospitalise an innocent man on the illfounded claim that he was mentally unwell. I pointed this out to the judge and signalled my readiness to proceed with the s(9) hearing. My witnesses were all present as were the Police officers involved and their informant. Rather than proceeding in due process of law the judge chose to close the hearing and set the section 9 hearing for 17 March 2010. 19. At the 17 March 2010 s(9) hearing, again with all of my witnesses ready and the Police officers present, I made application for oral evidence (see EXHIBIT B oral evidence application). The Judge advised the
Page 3

Police to block this application orally and in writing which appears to be a demonstration of bias. I reasoned that the bulk of the witnesses and the evidence refuted the Police allegations. The Police provided no evidence as all statements were challenged. Again the judge decided to close the hearing without ruling and set it down for a formal section 9 March 30 2010.
20. Another question is raised by s(10)2 of the Criminal Procedures (Mentally Impaired) Act 2003 that clearly states a special hearing for the section 9 determination. It is hard to fathom how more than one hearing can be derived from this wording. Perhaps this alone is a miscarriage of justice? 21. The Defendant appeared yet again at a Criminal Procedure (Mentally Impaired) Act 2003 s(9) hearing on the 30th March (See EXHIBIT C Criminal information continued). Yet again, all of my witnesses were present. In this hearing Judge Harvey chose to ignore all evidence in defence only looking at one set of Police statements and to whether I was there, not also whether I was likely to have offended. The standard of proof was balance of probabilities and this interpretation appeared to be in breach of the Bill of Rights 1990 s 6

S(6) Interpretation consistent with Bill of Rights to be preferred Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

21. I pointed this out but Judge Harvey seemed attached to his viewpoint and even refused to state a s(4) Bill of Rights exemption as he appeared to be required. 22. It is readily apparent that Part 5 of the Summary Proceedings Act 1957 applied to summary proceedings as per the Criminal Procedure (Mentally Impaired) Act 2003 s(10)
S(10) Inquiry at summary hearing into defendant's involvement

(1) This section applies if a defendant is proceeded against summarily. (2) If the question whether the defendant is unfit to stand trial is to be determined before the hearing of the information, the court must hold a special hearing to ascertain whether the court is satisfied of the matter specified in section 9. (3) The provisions of Part 5 of the Summary Proceedings Act 1957 that relate to the conduct of a committal hearing, so far as they are applicable
Page 4

and with any modifications, apply to every hearing held under subsection (2)
23. It is also clear that the charges were laid summarily (See EXHIBIT Reynolds information). The condition that s66(4) of the Summary Proceedings Act 1957 requires is for the charge to have been laid indictably. Clearly this was not the case prior to and even at the time of the hearing. 66 Defendant's right to elect trial by jury where offence punishable by more than 3 months' imprisonment(1) Any person charged under this Part of this Act with an offence which is punishable by imprisonment for a term exceeding 3 months shall be entitled, before the charge is gone into but not afterwards, to elect to be tried by a jury. Before the defendant is called upon to make his election under this subsection, the substance of the charge shall be stated to him. (4) Where a defendant who is charged under this Part of this Act with an indictable offence elects under this section to be tried by a jury, the proceedings shall continue as if he had been charged on an information in form 2 in Schedule 2 to this Act. 24. Thankfully, in the interests of the justice, judges are hired to interpret the law not to write them ad lib during proceedings. While the meaning of sections and subsections can be considered with other sections it does not appear just for a judge to insert words into sentences with the effect of prejudicing a defendants rights or interests. That again would appear to be in breach of the Bill of Rights 1990 s(6). 18. Still at this 30 March 2010 hearing the defendant elects trial by jury as per section 66 Summary Proceedings Act 1957. Why not? It is his right after all and done in good time. These jury decisions directly shape common law in New Zealand and there are certain questions of law to be heard in this case. By all rights it should therefore be referred to a High Court for determination. The jury application triggered a 42 day time limit for the prosecutor to file the written statements. Unfortunately for the prosecution this did not happen in time. They were filed on the 26th May 2010 (See EXHIBIT D Depositions) This requirement is clearly state in the Summary Proceedings Act 1957 s168 (1) A and with no leave by a District Court Judge. 168 Obligations of prosecutor to file formal written statements within certain period(1) The prosecutor must file in the office of the Court the formal written statements that form all or part of the evidence for the prosecution for the purposes of the standard committal or at the committal hearing, as the case may require, together with the exhibits referred to in those statements, not later than (a) 42 days after

Page 5

(i) the date on which the defendant elects trial by jury under section 66; or (ii) if the information is laid indictably, the date on which the defendant first appears in Court in relation to that information: (b) such earlier or later date specified for the purposes of this section by a District Court Judge. (2) Despite subsection (1), the prosecutor may file a written statement later than the date required by that subsection in any case, with the leave of a District Court Judge. 19. The backdrop to this was that the defendant had made a complaint with the Police on the 24th May 2010 with a view to laying informations against the officers concerned and Top Energy. The defendant felt compromised talking to the same organisation that was seeking to incarcerate him, talking about Police employees that worked in offices next door. Yet that was the condition that Tania Parker the Kaitaia District Court registrar imposed before accepting the informations. I still have not found the legislative basis for this imposition. 20. Having additional information perhaps the Police just could not help themselves. The earlier Police statements had too many weaknesses in them and would be shown up by the video evidence. So new statements were crafted by CN David Reynolds and CN Hayden Nicol. They were signed but not dated. With the huge number of cases they handle it is unbelievable that their memory of events appears to be getting stronger as time goes on. Its also apparent that these statements keep contradicting earlier ones. 21. Now Tania Parker (the Kaitaia District court registrar) being familiar with the 42 day time limit and 30 March jury application had a problem. May 26th which was the date for the Committal hearing was outside the timeframe. So, after calculating the required date, she went back through other defendants files to find specific date stamped documents that would fit the bill. This she found with Victoria Watsons Notice of filing of formal written statements for the purposes of committal (EXHIBIT E) date stamped 10 May 2010. She crossed out two names and hand wrote in Simon Kaiwais. Then passed it to Andrew Robert (the Police prosecutor) who interpolated his. She overlooked the CRN number which was unchanged and did not match Simon Kaiwais. If ever there was a farcical display of justice this was the one that even the most lay person would identify. 22. Other documents were produced with another three changes on them (see EXHIBIT F and G). It is hard to reason against the law of impossibility and the exhibits prove that Tania Parker claims the statements were written on two different days. 23. The net effect is an attempt to prejudice the defendant. No notice was provided and further, when the defendant went to court on the 26th May 2010 he was informed that the Committal hearing had moved to the 28th May 2010. When he went there on the 28th May he was threatened to sign a post Page 6

committal document. It is quite obvious that the undue course of law was apparent to the defendant at the time. See exhibit G. 24. The applicant believes that to ignore this matter would call into question the impartiality of the New Zealand justice system to the enforcement arm of government. It must therefore be in the interests of the New Zealand public for the judge to use discretion to discharge given the evidence against the Kaitaia Registrar in the defendants case. 25. Without these doctored Police statements there seems to be no evidence upon which to commit the defendant to trial or proceed to trial. 26. In addition to this it appears that the evidence in defence has been lost from the file. I specifically requested a copy of the Partial evidence in defence from Tania Parker and she denies having it in my file. Yet Judge Moore refers to it in his oral decision. The hearing upon which was made had no other than Tania Parker as the court taker. There are numerous discrepancies between what was said and what is recorded. 27. The defendant had previously requested a certified copy of the file and noted that previous statements from the Police were omitted and the Story Board of events which was evidence refuting Police charges was copied and possibly retyped so that it did not include my signiature. Talk about conspiracy! 28. The whole experience with Tania Parker acting as the registrar of the Kaitaia District Court has left me with no confidence that the judges have been served professionally allowing my evidence to be put before them. Somehow the Crown now feels it can claim a prima facie case one which I have conceded or somehow have to disprove Police accusations. Whatever happened to the burden of proof being on the accuser? Whatever happened to beyond reasonable doubt? 29. The defendant has previously offered to show the video in court, had witnesses present several days when their testimony could have been heard. 30. The defendant has requested to orally cross examine the Police and been blocked. 31. Now, apparently the defendants evidence in defence has also been lost in the shuffle. REASON B/ 32. Perversion of the course of justice 33. The defendant was on location to appear for the committal hearing at the Kaitaia District court on the 26th May 2010 but was advised by the Kaitaia Page 7

registry to appear on the 28th May 2010. 34. On arrival at the courthouse that day the defendant was asked to sign post committal documents. It was purported by the Kaitaia Registrar that the defendant did appear for the committal hearing on the 26th May 2010. 35. The objection of the defendant and manner of signing these post committal documents provides substantial evidence, This is annexed to the affidavit as EXHIBIT A. 36. Judge Harvey on July 21st in Kaikohe later recognised the mistake at an intended call over hearing necessitating this hearing to consider the application of oral evidence proving the validity of allegation of culpable ignorance against the Registrar. 37. The applicant once again asks for the judges motion in favour of discharge considering that these matters have caused excessive punishment by process. 38. Should the judge rule against this application and make no motion to discharge the applicant requests for the case to be stated for High Court determination on the following questions of law: QUESTION 1/ 39. Does the interpolation of court documents in the manner of this case constitute: a/ malfeasance by a registrar? b/ a miscarriage of justice? c/ culpable ignorance?
40. That proof of compliance to lawful duty for enforcement once requested is a

prima facie prerequisite to the continuation of any related action or prosecution in private circumstances unless in the case of an emergency or immediate risk to the public. Signed by:

Simon Kaiwai 12/16/2010

Page 8