"We have maintained a silence closely resembling stupidity" - Neil Roberts

Until we have legislation adopted into law to ensure fiduciary accountability and transparency in public affairs we will continue to have human rights breached because the existing crown immunity and lack of any independent oversight invites corruption to flourish.


"Question authority, and think for yourself" - Timothy Leary


"We have maintained a silence closely resembling stupidity" - Neil Roberts


"Information is the currency of democracy" - Thomas Jefferson


‎"Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever does." - Margaret Mead

"The truth is like a lion, you don't have to defend it. Let it loose, it will defend itself."

"I = m c 2 [squared] where "I" am information" - Timothy Leary

"Ring the bells that still can ring, forget your perfect offering, there's a crack in everything, that's how the light gets in." Leonard Cohen

"The internet is a TV that watches you"

Saturday, October 1, 2016

Email exchange with Acting Registrar regarding application for recall of France J's decision:



 24 August 2016
To the Registrar, High Court, Wellington
Attached is an urgent application for recall of the judgment of France J on the grounds that new evidence has become available which clearly establishes reasonable doubt regarding the evidence of the complainant and Police, the application includes a request for waiver of filing fee.
This decision is vitally relevant to proceedings currently before the Human Rights Review Tribunal, for this reason we request it be dealt with URGENTLY as a substantial miscarriage of justice has occurred, it is clear that the Court discriminated unfairly against Mr Mihaka and that his previous lawyers acted negligently in not bringing these matters to the attention of the Court during the previous appeals.
Mr Mihaka and I lack the necessary resources to copy and attach the attachments referred to in the application, they can be viewed at this link.

 ~~~~~~~~~~~~~~~~~~~~~~~~~

7 September 2016:
To the Registrar of the High Court at Wellington:

I emailed an urgent application for recall of a judgment of Simon France J in the matter of Te Ringa Mangu Mihaka v Police, including an application for waiver of any applicable fee, to the High Court at Wellington on 25th August 2016 but have not had any response to the application or acknowledgment of receipt, and am writing to confirm that it has been received and is being actioned.

Please acknowledge receipt of the application urgently - this matter is the subject of imminent hearing in the Human Rights Review Tribunal and it is vital that the application for recall is acknowledged prior to this hearing.  There has been a serious, substantial miscarriage of justice, there is fresh evidence, and this application is URGENT.

 ~~~~~~~~~~~~~~~~~~~~~~~~~~
9 September 2016
Hello Katherine
I refer to the Application for Recall of Decision referred to in your email below.
Please advise the legislation you rely on to file the application and have the judgment of Simon France J recalled as I have not been able to find any reference in the Criminal Procedure Act 2011 which allows the filing of this application some 14 months after the decision was made.
I look forward to hearing from you.
Kind regards
Sheena
 ~~~~~~~~~~~~~~~~~~~~~~~~~~
to Sheena
Alternatively, 2.3 -
"the miscarriage of justice is serious and the information was not made available within 5 working days - the application was made as soon as the information was made available by the other party."
http://www.legislation.govt.nz/act/public/1908/0089/latest/DLM1818573.html

~~~~~~~~~~~~~~~~~~~~~~~~~~
Both rule references relate to Appeals and Reviews in the Civil jurisdiction of the High Court, not the Criminal jurisdiction, which is what your appeal relates to.  The criminal appeal process is governed by the Criminal Procedure Act not the Judicature Act.  I am therefore unable to accept the Application for Recall.

I respectfully suggest seek legal advice as to what other options might be available to you to have Mr Mihaka's conviction readdressed in the Courts.


Kind regards
Sheena
~~~~~~~~~~~~~~~~~~~~~~~~~~
Tena koe Sheena,
We refer to para 61 and others in the attached Law Commission report.
Na Katherine Raue
Maori Agent for Te Ringa Mangu Mihaka
 ~~~~~~~~~~~~~~~~~~~~~~~~~~
22 September 2016:

Hello Katherine,

I acknowledge receipt of your email.  I have forwarded these emails (dated 20/9/16) and the Application for Recall that was attached to your first email (dated 24/8/16) to the civil manager, Jay Fealofani.  I will speak with him regarding our previous correspondence and discuss a way forward.


Kind regards
Sheena

~~~~~~~~~~~~~~~~~~~~~~~~~~
Hello Katherine,

I have spoken to my colleague Jay Fealofani in the civil jurisdiction regarding your original attachment 'Application for Recall of Judgment' - he also has a number of years' experience in the criminal jurisdiction in the District Court. 

I understand that the grounds for the recall are due to a miscarriage of justice because fresh evidence has become available which was not previously considered by the Court.  Your Application then goes on to describe the miscarriage.

Mr Mihaka's Appeal original appeal to this court was in relation to a Judge alone trial held before Her Honour Judge Kelly in the District Court in April 2015.  His first right of appeal against his conviction and sentence was to this Court.  This court heard the appeal on 2 June 2015 and gave its decision on 11 June 2015.  As discussed previously there is no avenue in the Criminal Procedure Act for Mr Mihaka to recall the decision of this court.

In accordance with the Act Mr Mihaka has a second right of appeal to the Court of Appeal.  To commence a second appeal Mr Mihaka needed to file an Application for Leave to Appeal in the Court of Appeal within 20 working days after this Court's decision.

He is now in a position where the Application for Recall cannot be accepted for filing in this court and the time to appeal to the Court of Appeal has expired.  I can see no action available to him through the criminal jurisdiction and this Application will not be progressed any further.

As to whether Mr Mihaka has the option to file a Judicial Review in the civil jurisdiction, that I don't know however Mr Mihaka cannot expect to continue relitigating matters based on further evidence he has found.  He needs to seek legal advice around what his options are if he wishes to progress these matters.


Kind regards
Sheena


cid:image001.jpg@01CF9788.22490170

Sheena Spiers
Criminal Manager (Acting) | High Court, Wellington 
Phone: +64 4 914 3619 | Ext: 53619

~~~~~~~~~~~~~~~~~~~~~~~~~~

So, we have a stalemate.  The Crown makes all the rules of this game, and changes them to suit - retrospectively if so desired.  If you don't get your act together within 20 days you simply miss out - regardless of the magnitude of the injustice.

And all the time the colonial Crown government have been screwing down 'omnibus' changes to the  legislation regarding criminal and civil Court procedure, to limit the avalanche of claims resulting from the devolving of the system and the privatising of the justice system (along with everything else that's not nailed down), they've been limiting access to legal aid more and more to the point where it's just become an absolute joke - a black joke, a sick joke - a joke on people like Te Ringa Mangu Mihaka and all the other tangata whenua who clog up the 'justice system' and fill the jails, their lives in tatters and their reputations in ruins because of gossip and whispers.

Agent Raue will be framing a further plea to the Court applying sections 237 - 240 of the Criminal Procedure Act, this report will be updated shortly with the further plea.  We also have Plans C, D, E and FU up our sleeves and can come up with more plans if none of those work too.

Tuesday, September 20, 2016

Warnings about omnibus tax law changes:

Accountants are sounding the alarm about the government's new 'omnibus' tax law changes, claiming they are a get out of jail free card - looks like they based the changes on the Australian GST Act!

The Australian Goods and Services Tax Act 1999 is a hefty piece of legislation to try and make your way through, but it's well worth it when you arrive at section 165.55, which states the following example of creative use of the Queen's English:


[The] "Commissioner may disregard scheme in making declarations. 
         For the purposes of making a declaration under this Subdivision, the Commissioner may: 
                     (a)  treat a particular event that actually happened as not having happened; and 
                     (b)  treat a particular event that did not actually happen as having happened and, if appropriate, treat the event as: 
                              (i)  having happened at a particular time; and
                             (ii)  having involved particular action by a particular entity; and
 
                     (c)  treat a particular event that actually happened as: 
                              (i)  having happened at a time different from the time it actually happened; or
                             (ii)  having involved particular action by a particular entity (whether or not the event actually involved any action by that entity)."
This is not unlike the recent decision of the NZ Court of Appeal in the matter of Criminal Bar Association v Attorney General in which the Honourable Judge uttered this:
"But the issue is not what is desirable as a matter of sound public administration, but what is lawful."

Syria - Plan B - the Saudi solution:


U.S. Secretary of State John Kerry. © Jorge SilvaOn 19 September 2016, following "peace talks" in March, US Secretary of State John Kerry admitted bombing Syria, but still tries to blame the victims.

The following day an aid convoy was bombed in what appears to be a blatant war crime.

While Donald Trump, America's answer to 'Dirty Harry' Duterte and Hilary Clinton continuing slugging it out, Kerry says
"Washington “acknowledges and regrets” the fatal airstrike on Syrian government troops by coalition jets, but blamed Syrian President Assad for “bombing people indiscriminately” and blocking the delivery of humanitarian aid."
The media continue to wag the dog, with the Guardian proclaiming that the US blame Russia for the attack but spinning the report with the headline to make it appear as though the UN statement that IF CERTAIN ALLEGATIONS ARE TRUE it COULD amount to a war crime - it clearly IS a war crime - it looks from the report as though the UN are saying more than they actually are.

Meanwhile, on Planet Key, John and Bron, leaders of the local Saudi Arabia Mutual Appreciation Society, are still hopeful that their little multi million dollar bribe to the Saudis will pay off, with John "warning the US of the dangers of not ratifying the TPP" - apparently citing his own experience with the Saudis following the very thinly veiled blackmail and bribery scandal around Key's 'gift' of an abattoir and millions of dollars of New Zealand tax payers' money to "a Saudi businessman" who was allegedly "disaffected in some way" by some vague reference to some imaginary "a decision of the previous government" - led by UN hopeful Helen Clark. 

After Key arrogantly announced that the abattoir deal WILL go ahead despite unanimous outrage from voters - Key announced yesterday "Let's see whether we get there with the Gulf, but I feel a bit more confident than I did" about the imaginary non existent trade deal with the bloodthirsty regime.




 The question now is, who's really driving the "peace process" and in which direction?  Saudi Arabia's Foreign Minister recently announced that it was time for "Plan B".  
“It was made clear that Bashar al-Assad has two choices – either he will be removed through political process or he will be removed by force,” 
Adel al-Jubeir addressed reporters after the International Syria Support Group (ISSG) meeting co-chaired by Russia and the US.
“We believe we should have moved to a ‘Plan B’ a long time ago,” he said. 
“If they do not respond to the entreaties of the international community... then we will have to see what else can be done.”

A picture provided by SPA shows Crown Prince Mohammed bin Nayef (1st row R), US Secretary of State John Kerry (1st row L), Saudi Defence Minister and Deputy Crown Prince Mohammed bin Salman (2nd row R) and Saudi Foreign Minister Adel Al-Jubeir touring at the King Khalid Military City. (AFP)



Monday, September 19, 2016

State of the Nation - Key government ridiculed by pretty much all and sundry:

While the United Nations challenges the New Zealand government's record of discrimination against children who live in poverty, the United States is shaming them on their failure to protect other endangered species, local law experts such as Sir Ron Young and Roimata Smail heap stinging criticism of the so called 'New Zealand justice system'.

Sir Ron says that in a number of ways the right to a fair trial are being undermined, and the public's right to a criminal justice system which is fairly and properly funded so that they can be confident in the system is also being compromised.

I would add that the problem is not just lack of funding, but a problem with the way in which the funding is allocated and used, and the issue of Police discretion, prosecutorial misconduct and the misuse of prosecutorial discretion, the problems with seeking judicial review of improper prosecutorial decisions, failures of IPCA and PCA to address complaints regarding improper prosecutorial decisions, and other related matters which members of the public like Kate Raue and Dun Mihaka are challenging.

Ministry of Justice information reveals that a Judge and Court staff were forced to lock themselves in after Police ignored calls to attend a massive gang brawl at the Tokoroa Court - two months after a security shake up - the media reported that Police were "too busy" to attend, but that was changed shortly thereafter to "too under resourced" - yeah, right.

The ongoing saga of MAF/MoBIE and their fatal Achilles leak continues, bringing the government further into ridicule.  In response to questions about MoBIE's actions "It was regrettably flawed and we must move on," Ministry for Primary Industries Director-General Martyn Dunne said.  Dunne would not comment on whether anyone had lost their job over the incident.   Dunne refused to answer questions about whether anyone had lost their job stating:  "There will be change and there has been change, people have moved around."  If incompetent and corrupt staff are weeded out in properly conducted investigations at the first sign of complaints, instead of "moved around" like Catholic priests accused of child abuse, it would save the taxpayer MILLIONS, instead, incompetence and corruption and covered up, and aided and abetted, in the public AND private sectors and both incompetence and corruption are now endemic and out of control, particularly in the public sector and public private partnerships.

While people like Owen Glenn pontificate about New Zealand's shameful domestic violence statistics, appointing men like disgraced 'retired' Supreme Court Judge Bill Wilson QC to "study" the accounts of the victims - in between his sideline career as a boxing promoter and ghost writer for the Sunday Star Times.  You seriously could NOT make this up.



Monday, September 12, 2016

Human Rights Review Tribunal proposition to refer matter back to District Court:

Judge Behrens QC began one of his written decisions with the words "This case has taken some unusual turns."

Following an exchange of emails between Agent Raue and the various other parties to the proceedings in the Human Rights Review Tribunal, Office of Human Rights Proceedings (and the District Court, High Court, Court of Appeal and Supreme Court), we received an email from the HRRT today.


Dear Ms Raue, Ms Cuncannon and Ms Shaw

Mr Mihaka (through Ms Raue) has applied variously for an extension of time for the filing of Mr Mihaka's evidence and also for an adjournment.  In case not all the correspondence has been copied to you by Ms Raue I attach in PDF:


1.    Email dated 8 September 2016 timed at 1:57pm from Ms Raue to the Office of Human Rights Proceedings (OHRP)
2.    Email dated 8 September 2016 timed at 3.53pm from Ms Raue to Ms Shaw
3.    Email dated 9 September 2016 timed at 12:48pm from Greg Robins, senior solicitor, OHRP
4.    Email dated 9 September 2016 timed at 3.57pm from me to Ms Raue requesting medical certificates
5.    Email dated 9 September 2016 timed at 4:57pm from Ms Raue to Mr Robins
6.    Email dated 12 September 2016 timed at 11.36am from Ms Raue regarding the requested medical certificates.


The Chairperson has directed that if Housing New Zealand Corporation wishes to file submissions in response to the adjournment application, those submissions be filed and served by 5pm on Friday 16 September 2016.
Now, this is the best bit:


The Chairperson would also like to hear from HNZC whether, with the benefit of hindsight, it would be better for the District Court appeal to be set down for hearing rather than adjourned pending the resolution by the Human Rights Review Tribunal of the proceedings brought by Mr Mihaka in HRRT076/2015.

Any submissions by Mr Mihaka in reply are to be filed and served by 5pm on Monday 19 September 2016.  Those submissions are to also address the question whether it would be better for the District Court appeal to be set down for hearing rather than adjourned pending resolution by the Tribunal of HRRT076/2015.
Yours sincerely
Helen
The "District Court appeal" refers not to an appeal of the dodgy conviction for the alleged assault I suspect, but to an appeal of the Tenancy Tribunal decision to evict Mr Mihaka.

We need to revisit the original conviction - it's no good saying Housing NZ Corporation didn't need a reason to evict Mr Mihaka because the fact is that they stated numerous times that there WAS a reason and that reason was the unsubstantiated, slanderous, allegations of Mr Dickie.

We also need an explanation from Ms Stephanie Smith regarding why she told a bare faced lie, and we need Naomi Davies and Kathy Furfie to identify the Police officer they allege told them the nonsense about Mr Mihaka living in a "suspected P house" etc.
9 September 2016 at 16:57
Tena koe Mr Robins,
Thank you for your response regarding this matter.
Please explain why your Office has been unable to 'retrieve' the email we sent since 12 August, you mentioned an 'IT' issue, please obtain a full explanation as to why you remain unable to access this email and all information regarding the IT provider(s) involved, how many other emails are affected?  Over what time period has this problem affected emails sent to your Office?
I will endeavor to print the application form again and resubmit it as soon as possible, but urgently request an extension of time to submit Mr Mihaka's evidence which was required to be in today on the grounds that, respectfully, the inability of the Office of Human Rights Proceedings to access their emails is not Mr Mihaka's fault, there has been a serious miscarriage of justice which occurred because Mr Mihaka did not have legal representation because he could not afford to pay to defend a charge he was innocent of and being forced to do so, particularly repeatedly, is an injustice in itself.
We request an extension of time to submit Mr Mihaka's evidence - at least until Monday, and preferably until the Office of Human Rights Proceedings is able to access and consider the application we emailed on 12 August and posted shortly thereafter.
There is no urgency regarding this matter, Mr Dickie touched Mr Mihaka inappropriately and admitted it.  Contrary to the email from Karaka Tuhakaraina - crucial to the discriminatory decision to evict Mr Mihaka - Mr Mihaka has never ever admitted to assaulting or threatening Mr Dickie Mr Dickie has admitted touching Mr Mihaka inappropriately and then having a panic attack.  Mr Mihaka was denied any proper legal advice during the trial process, was completely unaware that he was entitled to Disclosure according to the Criminal Disclosures Act, and Judge Hastings' wise suggestion that an amicus curiae be appointed was ignored by the trial Judge.
Contrary to the information we have received Mr Mihaka NEVER agreed to this matter being fast tracked under urgency in the first place - there was never any need for urgency, Housing New Zealand Corporation and their representatives are not being honest in claiming that there is!  They suggest that there have been complaints from other tenants and evidence of assault against other tenants - none of which is supported by any actual EVIDENCE whatsoever!
We requested the information referred to in the ASBG on pages 20 and 21 - the T463 form, statement, etc, this information has not been provided and it is crucial to Mr Mihaka's evidence, being the allegation against him.  We also requested the HNZC Guide to the Privacy Act referred to in the ASBG and are making a formal complaint to the Privacy Commissioner regarding the serious discrepancies in the so called evidence regarding these matters and the clear and indisputable serious miscarriage of justice and blatant discrimination of the very kind referred to by the recent Henry Harkness lecture given by Justice Ron Young (attached).
Housing New Zealand's policies don't apparently consider the possibility that the complaint may not be justified, the complainant may be mistaken, or wrong, or confused, all of which should be considered when dealing with older people.  The policy appears to assume the complainant is always right and there is no possibility that the accused may be innocent - this is borne out by the fact that HNZC breached Mr Mihaka and made the decision to evict him prior to his conviction purely on the basis of information provided by the complainant. 

The refusal of HNZC to reveal the identity of the Police officer who allegedly told them that Mr Mihaka lives in a suspected P house, uses methamphetamine and is a serious cannabis smoker is extremely disingenuous in the face of the very recently obtained evidence that the information originated from Mr Dickie, not the Police.  The allegations are contained in Mr Dickie's statement to Police.
Mr Mihaka apparently received one letter from HNZC dated 12 August 2014 which is that on page 63 of the bundle of documents provided by Meredith Connell.  Mr Mihaka fully complied with this letter.  We dispute the allegation of HNZC that Mr Mihaka refused to engage with them - he endeavored to engage, but according to the evidence HNZC had already made up their mind.  HNZC are refusing to engage in their refusal to provide the identity of the Police office alleged to have provided the information which is coincidentally identical to that provided by the complainant and not independent corroboration at all, and other information, falsely claiming that the decision to issue the 90 day notice preceded the breach for the assault as claimed in the transcript of the Tenancy Tribunal hearing.

It is a basic human right to be tried by one's peers and the manner of the recusal of the one Maori member of the panel and the refusal of the suggested recusal of another member who previously worked with Housing NZ Corporation combined with the denial of affordable legal aid, the apparent incompetence of the two appeal lawyers in not even noticing that Mr Mihaka had never been provided with Disclosure let alone the serious discrepancies therein, are particularly relevant in reference to the decision of the Waitangi Tribunal that Maori never ceded sovereignty and never agreed to be 'governed' like this - if the British Crown legal system is going to impose its will on tangata whenua they need to act fairly!  Mr Mihaka has clearly and indisputably been the victim of a serious miscarriage of justice and it is imperative that he has legal representation in these proceedings because the very fact that he didn't have legal representation earlier is the cause of a huge waste of time and resources and the very reason for this outrageous state of affairs.
We have only today received a response from the High Court to our application for a recall of the decision of France J on the grounds of the serious discrepancies which have suddenly become apparent upon the application of Mr Mihaka's Agent for the information he was entitled to under the Criminal Disclosures Act.  This response dismisses our application on a technicality and recommends we seek legal advice - the situation is truly Kafka-esque - we have done our very best to obtain legal assistance as the correspondence with Mr Gwilliam, Mr Bourke, etc, document very well!  We pay taxes to a government which can't access their emails because they moved to the cloud, while we can't afford basic resources ourselves and the government wants to spy on us and talk about information sharing but can't access the emails for this length of time?

We do not intend any disrespect to the Tribunal, but cannot believe the recent decision to cram the hearing into one day and now to find that our application still can't be accessed by the Office of Human Rights Proceedings because of an 'IT issue'.  This is not justice, and Maori never ceded sovereignty or ever agreed to be 'governed' like this, and Mr Mihaka strongly believes that the mana of te taonga a o tatou matua tupuna, te reo Maori, is being dishonoured by these proceedings - there should have been an amicus in the District Court and the issue of the discrepancies in the evidence need addressing!
We are compiling Mr Mihaka's evidence on a website at this link in the hope that some of our evidence will meet the required standards in respect of the instructions issued by the Human Rights Review Tribunal and comply with the narrow jurisdictions and arcane intricacies New Zealand legal system in which access to justice is increasingly unattainable and inaccessible, as confirmed by Justice Young, Criminal Bar Association v Attorney General and the correspondence between Mr Mihaka, his lawyers and the Courts and Tribunals regarding these related matters - Housing NZ Corporation is being disingenuous in pretending that the eviction of Mr Mihaka had nothing to do with Mr Dickie's wild, fanciful, embellished, contradictory allegations - their claims are totally contradicted by the evidence. 

Housing NZ Corporation clearly discriminated against Mr Mihaka by simply taking the word of Mr Dickie and giving undue credibility to Mr Dickie despite the indisputable discrepancies in his evidence and the ongoing refusal to be honest about the fact that the slanderous information about Mr Mihaka which is referred to in Mr Bourke's correspondence with Police and Housing NZ Corporation is clearly lifted verbatim from the statement of Mr Dickie, who is the source of the information, not the Police as Housing NZ are disingenuously suggesting if not deliberately and knowingly claiming to be true when they know perfectly well it is not true, along with several other claims including those referred to in this and other recent emails.
Housing NZ Corporation are also disingenuous in falsely claiming that a statement was taken from Mr Dickie in accordance with their policies as is clearly evident in the transcript of the hearing beginning on 3 August 2016 - no such statement as required by the policy was recorded as evident by the response of Meredith Connell to our request for a copy of the statement of the complainant as required by HNZC policy.  It doesn't exist and HNZC continue to try and make out it does but it just wasn't "put to paper" as it were.  It's nothing but Chinese Whispers and common gossip, and the evidence of the complainant does not stand up to scrutiny, and Mr Mihaka has not been given any reasonable opportunity to be heard, or even properly informed regarding the allegations against him, and he has been further ripped off by the two lawyers conducting the appeals who did not even notice Mr Mihaka never even received Disclosure and thus seriously limiting his ability to prepare or present a defence, in addition to the arresting officer telling him the alleged offence happened on a different day to the complainant's allegations, and the other discrepancies.

Nga mihi
Katherine Raue
Maori Agent for Te Ringa Mangu Mihaka 
We will be suggesting to the Human Rights Review Tribunal that the decision of France J be revisited as there is clearly fresh evidence that was not available to the Court before now, being the contradictory information recently released by NZ Police, Housing NZ Corporation, the complainant, lawyers, and others involved in these matters. 

Wednesday, September 7, 2016

Transcript of Human Rights Review Tribunal hearing on 3 August 2016, Office of Human Rights Proceedings:

Dear Ms Raue
Thank you for your email message and attached letter received today.
As discussed with you in our telephone conversation on Wednesday 17 August, the Commission recently undertook an electronic migration to the ‘cloud’. 
Regrettably, during that process our OHRP mailbox went offline for two weeks due to matters completely beyond our control.  The contractors have still not been able to restore emails sent to our OHRP mailbox during that time.  Consequently we have not been able to access the Application for Legal Representation which you indicated you sent by email to the OHRP mailbox on Friday 12 August.  However, as the mailbox is now working again it would be appreciated if you would re-send the application to ohrp@ohrp.org.nz.
We very much apologise for this considerable inconvenience.
Thank you.
Pam Rowe

The link to the transcript of the first part of the hearing held in the Human Rights Review Tribunal on 3 August 2016 is at this link, click to view.

The transcript of the second part of the hearing is at this link.

Readers will note that an adjournment was granted for the purposes of Mr Mihaka making application to the Office of Human Rights Proceedings for representation in the proceedings before the Human Rights Review Tribunal.

Mr Mihaka's Maori Agent emailed the application form as instructed promptly, however the response from the Office of Human Rights Proceedings was less than inspiring, and is copied below, apparently, since they 'moved to the cloud' they've been - and still are - unable to access ten days worth of emails, which is a very unfortunate state of affairs, but par for the course as far as government agencies information sharing policies and procedures, such as the information sharing between Housing NZ Corporation and NZ Police:

 26 August 2016:
Tena koutou katoa

Attached is the letter referred to in our application for assistance and supporting correspondence regarding Mr Mihaka's medical appointment in support of his application for an adjournment because the nominated dates are unsuitable as he cannot reschedule his appointment and the stress of having a two day hearing condensed into one day, starting earlier is not conducive to Mr Mihaka's health or the concept of fair justice.  Housing NZ Corporation was granted an adjournment when their witness requested one on medical grounds and it is only fair that Mr Mihaka is treated in the same manner - HNZC were not simply told to attend on the other day and we'd squeeze it in, and it is not fair on Mr Mihaka, whose health was already compromised by Police who are also a party to these proceedings, a letter from Mr Mihaka's doctor regarding that recent incident, which is relevant to this matter, contains the following statement:
    "This gentleman is seventy four years old and had a number of medical problems.
    I am unclear of the recent circumstances surrounding the night he spent on a road in his car near National Park village, but regard it as inappropriate that any person of seventy four years old should, of necessity, sleep in a car on that stretch of road at that time of year."
Nga mihi
Katherine Raue
Maori Agent for Te Ringa Mangu Mihaka
. ~~~~~~~~~~~~~~~~~~
 "Dear Ms Raue
Thank you for your email message and attached letter received today.

As discussed with you in our telephone conversation on Wednesday 17 August, the Commission recently undertook an electronic migration to the ‘cloud’. Regrettably, during that process our OHRP mailbox went offline for two weeks due to matters completely beyond our control. The contractors have still not been able to restore emails sent to our OHRP mailbox during that time. Consequently we have not been able to access the Application for Legal Representation which you indicated you sent by email to the OHRP mailbox on Friday 12 August. However, as the mailbox is now working again it would be appreciated if you would re-send the application to ohrp@ohrp.org.nz.

We very much apologise for this considerable inconvenience.

Thank you.

Pam Rowe
Registered Legal Executive/EA to the Director
Office of Human Rights Proceedings
PO Box 6751
Wellesley Street
AUCKLAND"

The application was mailed through NZ Post immediately we became aware of the inability of the Office of Human Rights Proceedings to access their emails, there has been no response to date, or any acknowledgement of receipt of the application.

The following email was sent to the Human Rights Review Tribunal and Meredith Connell (Housing NZ Corporation's taxpayer funded legal team) today:
Tena koutou katoa,
Regarding the transcript of the Tenancy Tribunal hearing on 24 September 2014 before Adjudicator Janet Robertshawe.  On page 9 of the transcript of proceedings the Adjudicator questions Meredith Connell representative, saying "there's a feeling . . . that there's been something unjustified about that decision [to evict Mr Mihaka], . . . Are you aware of that?"
Ms Smith responded "I am, the 90-day notice was issued prior to us breaching the tenant for the alleged assault."  This would appear to be blatantly untrue and Ms Smith should have been well aware that it was untrue.
This untruth certainly influenced the Tribunal, and it is a serious matter to which we would appreciate an immediate response.
Secondly, the information provided by HNZC contains an email exchange involving Karaka Tuhakaraina of Housing NZ Corporation, in which Karaka Tuhakaraina claims that "Mr Mihaka has assaulted another resident, admits it and continues to antagonise others."
This is outrageous - Mr Mihaka has NEVER admitted assaulting another resident - the 'other resident', presumably Mr Dickie - has admitted assaulting Mr Mihaka - several times!  There is NO information to suggest that Mr Mihaka"continues to antagonise others" whatsoever!  In fact here is no evidence that there were any complaints against Mr Mihaka from any resident other than Mr Dickie!
Thirdly, NZ Police have now confirmed in writing that they hold no information such as that allegedly told to Housing NZ Corporation staff regarding Mr Mihaka's alleged drug use, etc, we have provided a copy of the letter from Police saying so and we insist that either Housing NZ reveal the identity of the Police office who allegedly told staff that, or correct the information in the face of the EVIDENCE provided by NZ Police!

We insist that this information is corrected immediately, and an explanation provided regarding the statements of Ms Smith - evidence shows that Housing New Zealand Corporation wrote to Mr Mihaka informing him of the breach WELL PRIOR to the issuing of the 90 day notice!
Fourtlhy, regarding the claim that Mr Mihaka's previous lawyer agreed to this matter being heard under urgency - Mr Mihaka states that he most certainly never agreed to any such thing, the need to evict him was certainly NOT urgent - Mr Dickie was relocated thereby ending the problem created by his unwanted and uninvited touching of Mr Mihaka!  We strongly oppose the decision to limit the hearing to one day starting earlier instead of a two day hearing as originally set down - Housing NZ Corporation was granted an adjournment to another 2 day hearing on their application regarding a medical appointment for their witness and we insist on equal treatment!
Furthermore, we received advice from the Office of Human Rights Proceedings that they have "recently moved to the cloud" or something and as a result of this they are still unable to access their emails for a certain period of time, including the email we sent.  This is not Mr Mihaka's fault!  We mailed the application as well as emailed it, but have to date received no response - this also is NOT Mr Mihaka's fault!  We request an adjournment pending the Office of Human Rights Proceedings finding a way to access their emails, as well as Mr Mihaka's medical appointment - his doctors have expressed disquiet regarding the proximity of the dates of the hearing and Mr Mihaka's medical procedure and this rush is unnecessary, unseemly and totally unwarranted!
Nga mihi
Katherine Raue
Maori Agent for Te Ringa Mangu Mihaka



Tuesday, August 16, 2016

Application for recall of judgement of France J - updated correspondence with the Court:

Tangata whenua v the Crown Police State


IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY

                                    CRI 2015-485-21                                         [2015] NZHC 1318




    BETWEEN        TE RINGA MANGU MIHAKA

    AND            NEW ZEALAND POLICE

______________________________________________________________________________

APPLICATION FOR RECALL OF JUDGMENT
______________________________________________________________________________


May it please the Court:

[1]        The Applicant hereby respectfully applies for a recall of the judgment of France J dated 11 June 2015, CRI 2015-485-21 [2015] NZHC 1318.  Mr Mihaka appeals against conviction on a charge of assault brought against him by New Zealand Police, on the grounds that there was a substantial miscarriage of justice because fresh evidence has become available which was not previously considered by the Court.  Mr Mihaka never received any Criminal Disclosure from Police prior to the trial and was therefore unaware of the serious discrepancies and direct contradictions between the evidence given on oath at the trial and the alleged facts contained in the statement the complainant gave to Police on 2 June 2014, the Police Summary of Facts, arresting officer's notebook, and other information which directly contradicts the complainant's 'evidence'.

[2]    The alleged assault which is the subject of these proceedings is also the reason for proceedings currently before the Human Rights Review Tribunal, as the allegation was the reason for proceedings in the Tenancy Tribunal to evict Mr Mihaka from his home, which is owned by Housing New Zealand Corporation.  There are a number of serious discrepancies in the information Mr Mihaka has recently received, information which has not been considered by the Court, and information which is directly relevant to the credibility of the complainant and the findings of the Court.  With respect, it seems that his honour France J was totally unaware of any of these discrepancies, because none of them have apparently been brought to his attention, it seems that the appeal Courts did not address this evidence because either it was not available to them or they did not give it any (let alone sufficient) weight.  District Court Judge Kelly had a fiduciary duty to note the discrepancies in her judgment, and to appoint an amicus, as a Judge Hastings had advised, to assist the Court in what was clearly going to be a challenging trial, in which Mr Mihaka was a self represented defendant, conducting his own defence in Te Reo a o tatou matua tupuna o nga tangata whenua according to the Maori Language Act.

[3]      Mr Mihaka is absolutely adamant that he never received Disclosure regarding the assault charge, according to the Criminal Disclosure Act 2008.  It is evident that Mr Mihaka never saw the statement made to Police by the complainant, or the Summary of Facts, or he would have alluded to them in his cross examination of the complainant and witnesses during the trial.  The reason that these serious discrepancies have not been addressed by the Court is that Mr Mihaka was unaware of them because he never received the information from NZ Police or anyone else, and Judge Kelly clearly either did not notice the discrepancies, or did not accord them due weight in regard to the credibility of the complainant.  Then they were not noticed by either of the two appeal lawyers.  These discrepancies are serious.  They are directly relevant to the lack of credibility of the complainant - the onus is on the prosecution to prove the charge, the charge is specific, and the so called evidence is totally contradictory - it shows that the complainant actually deliberately applied force to Mr Mihaka, touching him inappropriately, twice accordig to the complainant, while Mr Mihaka was asleep - Mr Dickie assaulted Mr Mihaka, not the other way around.

If what Mr Dickie, the complainant, said in his sworn evidence is true, then what the Police allege could not have happened because it would be impossible.  Mr Dickie admits applying force inappropriately to Mr Mihaka, Mr Mihaka - contrary to HNZC records - has NEVER stated that he assaulted Mr Dickie, he never would state that, because he has always denied assaulting Mr Dickie.  Mr Dickie was the assailant and he has been moved to another address, end of problem.  There is no evidence of any complaints about Mr Mihaka from other tenants, either prior to or since Mr Dickie's complaint, but there is strong evidence of an extremely dysfunctional system of 'information sharing' between Police and Housing New Zealand Corporation, and strong evidence that this 'information sharing' has resulted in a series of serious miscarriages of justice, and that the mechanisms for addressing miscarriages of justice, such as appeals to the Court, have failed in this instance, and that the failures in this case are systemic, serious, and linked.

The copy of the complainant's statement was recently obtained  by Mr Mihaka from Police - with the last four lines of it blacked out - despite the fact that the request stipulated that it was required under the Criminal Disclosure Act 2008 as well as the Official Information Act and the Privacy Act.  A complaint resulted in the statement being provided in full very recently, and the last four lines of the complainant's statement raise serious questions indeed regarding the actions and integrity of Housing New Zealand Corporation, and NZ Police.  The last four lines of the complainant's statement to Police on 2 June 2014, which Police have only just disclosed, are almost verbatim what Housing NZ Corporation alleges that NZ Police told them, despite NZ Police denying telling HCNZ any such thing.  It is obvious that the information was obtained from the complainant and not NZ Police.

Mr Mihaka asserts that his tupuna did not cede sovereignty to the Crown, or agree to be governed in this manner.  He has not been treated fairly by the Courts, lawyers, legal system, or government.  The Court process was not explained to him and while he has appeared in Court before he is certainly not familiar with the latest legislation regarding criminal Court procedure, criminal disclosure requirements, etc.  Maori are over represented in the criminal justice system and we submit that the reasons for this over representation are the same reasons Mr Mihaka didn't receive a fair trial, Police and the Court ignored strong evidence of lack of credibility of the complainant, questions regarding the credibility of Police in relation to information allegedly shared with Housing NZ Corporation are also very relevant to this judgment - Housing NZ allege Police told them several very serious allegations and Police deny it, someone is not telling the truth and Reasonable Doubt clearly exists.  It is not Mr Mihaka's fault that he did not know he was entitled to Disclosure before he even entered a plea and certainly well before the trial.  It is not his fault that he is not a lawyer, if he was there is no doubt that this charge would have been withdrawn or dismissed as Reasonable Doubt is the only thing that is clearly established by an examination of the Evidence.

There are very serious discrepancies between the statement given to Police by the complainant, Mr Dickie, and the evidence given by Mr Dickie on oath in Court.  This discrepancy is vitally relevant to the credibility of the complainant, and was never addressed in the District Court, the High Court, the Court of Appeal or the Supreme Court.  In the statement to Police on 2 June 2014, and also in the Police Summary of Facts [sic] presented to the Court by NZ Police prosecutors, it is stated that the alleged incident occured at around 9 - 9:30 at night as the complainant was getting ready to go to bed.  The complainant admits to striking, tapping, stroking or otherwise touching Mr Mihaka first - a fact which NZ Police decided to leave out of their account of The Facts, indicating bias on their part.
This contact which was unquestionably deliberate and it inexplicably occured when Mr Mihaka was asleep, this physical contact by the complainant was uninvited and unwelcome.

In his evidence on oath however, the complainant stated that the alleged incident occurred at around 7 - 7:30 in the morning after he awoke and made coffee.  The complainant is clearly confused, and there is clearly reasonable doubt regarding his version of events.  His evidence repeatedly refers to his regular panic attacks, the amount of medication he takes, his poor memory, etc, and it is unbelievable that this conviction should stand on the basis of evidence that is so blatantly contradictory - if what the complainant said on oath happened then what he claims in his statement to Police, and what Police claim happened, is impossible and simply could not have occured.  This serious discrepancy has never been addressed by the Court, and it is crucial to the issue of the complainant's credibility.  It clearly establishes Reasonable Doubt.  Mr Dickie repeats many times that he has a history of serious panic attacks.  He panicked, hyperventilated, and as he said "All I could see was me being a dead body on the floor" - he had a panic attack and imagined that an assault occured when it is likely that the only assault committed was when Mr Dickie touched Mr Mihaka inappropriately when he was asleep, then panicked when Mr Mihaka awoke in response to the inappropriate touching.

The notebook of the arresting officer shows clearly that NZ Police had decided to arrest Mr Mihaka before they even knocked on his door that day.  The officer has written that he read Mr Mihaka his rights twice before saying anything else, and that apparently half an hour elapsed between these utterances.  It also shows that at the time of his arrest, Constable Saunders told Mr Mihaka he was charged with an alleged offence that allegedly happened on 1 July - NOT 30 June.

[4]    It also appears that no lawyer acting for Mr Mihaka ever received or even asked for the Criminal Disclosure that Mr Mihaka was entitled to, as it wasn't on either of the lawyers' files when Mr Mihaka's Maori Agent collected them, and none of them had ever seen the complainant's statement prior to it being obtained by Mr Mihaka's Maori Agent very recently.

This information, and these serious discrepancies, have never been addressed by the Courts because both of Mr Mihaka's appeal lawyers failed to even notice that Mr Mihaka had never received Disclosure, and neither of them had ever seen the Disclosure let alone point out the relevant and vitally important discrepancies therein, and the obvious weight that should have been accorded as to the credibility of the complainant - and Police - on the evidence of the discrepancies, in addition to the several other errors which were found to exist in the judgment of DC Judge Kelly, and the relevance of these recently identified discrepancies to the errors already identified in the District Court judgment.

[5]    Mr Mihaka was a self represented Defendant, who elected to conduct his own defence, in his native language, his first and primary language, one of our official languages, because he did not wish to be forced to repay a legal aid loan to defend a charge he was innocent of.  Being innocent, he expected to be acquitted and did not wish to incur further legal bills for things he didn't do.   His appeal lawyers had a fiduciary duty to undertake  due diligence, discover that Disclosure had never been provided to Mr Mihaka, obtain it, and address the serious discrepancies therein, and Judge Kelly should have ensured that Mr Mihaka had received Disclosure in the first place.

[6]    Mr Mihaka has incurred legal aid bills of over $4000 now in relation to this matter, following two appeals, which were partially successful.  He respectfully applies for a waiver of fees regarding this matter, on the grounds that there has been a serious miscarriage of justice and he is impecunious, has no funds or assets and no income apart from basic superannuation payments, and ongoing debts to New Zealand Police due to their "unconscious bias against Maori" in general, and Mr Mihaka in particular, Police actions such as recently taking his car keys at National Park and leaving Mr Mihaka on the side of the road without a working phone or any way of heating his car, in the middle of winter, over a minor administrative matter when the officer should have exercised her discretion and granted compliance and allowed Mr Mihaka to continue the short distance to his home where he planned to attend to the minor administrative matter forthwith, as the previous officer had done.  Mr Mihaka's doctor has written two letters about these matters.  Mr Mihaka incurred major unforseen expenses recently, after this Police officer made the inhumane and unreasonable decision to take Mr Mihaka's keys, instead of accepting Mr Mihaka's reasonable explanation as to the "reinstatement" of his license, a minor administrative matter which he was on his way to attend to after being only made aware of it two days previously.  After leaving Mr Mihaka at serious risk of harm on the side of the road in the freezing cold all night with no phone or heating, and forcing him to incur these significant and unnecessary costs, New Zealand Police now expect him to pay $800 in fines regarding this matter.  There is evidence to strongly suggest bias on the part of Police exists and has a direct bearing on the charge laid against Mr Mihaka.

[7]    Mr Mihaka applies for a recall of the judgment of France J on the grounds that the Criminal Disclosure, and other relevant information, recently partially obtained from New Zealand Police by way of requests under the Official Information Act and the Privacy Act, is new evidence which was clearly not addressed previously by the Court, and is vitally relevant to the credibility of the Police as well as the credibility of the Complainant.

[8]    One example of this is the statement the Complainant made to Police on 2 June 2014 which states that the alleged assault occurred at around 9 - 9:30 in the evening, as the Complainant was getting ready to go to bed.  Mr Mihaka first saw this statement only about a week ago, and is still waiting for an unredacted copy of it - four lines have been redacted by NZ Police acccording to the OIA and Privacy Acts - due diligence requires Police to provide Mr Mihaka with Disclosure in a timely manner.  This did not happen.  Likewise, when Mr Mihaka recently requested all information regarding this matter according to the Official Information Act, the Privacy Act and the Criminal Disclosure Act, Police overlooked the fact that the request included information Mr Mihaka was entitled to under the Criminal Dislosure Act, and they blacked out the last few lines of the statement that the Complainant made to Police, which Mr Mihaka was entitled to in its entirety.  Mr Mihaka was entitled to receive Disclosure at the time of his trial - well prior to the trial, prior to him even entering a plea in fact.  Mr Mihaka didn't know about the Criminal Disclosure Act 2008, or the Criminal Proceedings Act 2011, he hasn't appeared in Court since 2008, he just knew he was Not Guilty so he said so.   He couldn't afford a lawyer and he couldn't afford to repay an expensive legal aid bill - especially after two appeal lawyers failed to notice ANY of these discrepancies which have such a direct relevance to the credibility of the complainant and the findings of District Court Judge Kelly.

[9]    The New Zealand Police Summary of Facts also states that the alleged assault occurred at around 9 - 9:30 pm as the Complainant was getting ready to go to bed.  Mr Mihaka first saw this Summary of 'Facts' only about a week ago.

[10]    Mr Mihaka has also recently received information from Housing New Zealand Corporation regarding the allegations of the Complainant, and this information also states that the Complainant also told Housing NZ Corporation that the alleged assault occured in the evening as he was going to bed, not in the morning as he was arising, as he stated in Court.  Mr Mihaka first saw this information only about a week ago when it was obtained and brought to his attention by his Maori Agent.  Housing NZ Corporation claims to have received information regarding Mr Mihaka's alleged drug use from NZ Police - it is evident from the information received in the last few days that the information was not received from Police at all - it was received from the complainant - it is almost verbatim what the last four lines of the complainant's statement says.  There is a clear degree of artificiality in the claim of HNZC that the information was received from Police - and Police vehemently deny providing any such information to HNZC.  It is well known that Mr Mihaka stood as a candidate for the Aotearoa Legalise Cannabis Party in the past and it seems that Police and HNZC are further discriminating against him on the basis of his political opinion in recording that he is allegedly a "serious cannabis smoker" - the allegations that he uses methamphetamine and lives in a "suspected P house" etc are simply slander, they are totally untrue, and Housing NZ Corporation clearly aren't the slightest bit worried about Mr Mihaka's neighbours living right next door to a "suspected P lab" or they would have done something about testing the allegation and testing Mr Mihaka's abode.

[11]    In his evidence on oath in the Court, the Complainant stated that the alleged assault occured at around 7 - 7:30 in the morning, after the Complainant awoke and made two cups of coffee.   On oath he said this alleged incident happened at around 9 or 9:30 in the morning after he woke up and made a cup of coffee.  In the arresting officers notebook it states that the officer believed the alleged incident happened on a completely different day and told Mr Mihaka he was accused of committing this alleged offence on some other day.  The onus is on the prosecution and there is clearly reasonable doubt regarding the conflicting 'evidence' put forward by the complainant and the prosecution, and the further correspondence between Housing NZ Corporation and Police and Mr Mihaka's lawyer Nathan Bourke regarding the allegations of HNZC that Police told them Mr Mihaka uses methamphetamine and is a serious cannabis smoker and lives in a P house, and the denial of saying any such thing by Police, clearly raises other very relevant issues regarding credibility and the actual facts of the case.  The only fact is that Mr Dickie touched Mr Mihaka inappropriately and unnecessarily while he was asleep and then Mr Dickie had a panic attack.  The evidence regarding alleged injury is inconclusive, particularly in light of the credibility issues regarding the complainant and Police  - the photographs provided to Mr Mihaka do not show any injury and there is no supporting evidence from Mr Dickie's doctor.

[12]    Mr Mihaka only received a copy of the trial transcript very recently when it was obtained from his lawyer and the discrepancies were finally noticed.  These are serious discrepancies and there are a considerable number of them.

The discrepancies regarding date and time are not minor typographic errors, and the allegations made by Housing NZ Corporation that they received information from Police which Police deny are directly relevant to the questions of the credibility of the complainant, and of the Police, not to mention the credibility of Housing NZ Corporation staff who are not a party to these proceedings directly, but are clearly involved in the directly linked issues of the charge against Mr Mihaka and his eviction.   Housing NZ Corporation records show that Dickie claimed that the alleged incident happened in the evening, not in the morning as he claimed on oath, and near enough isn't good enough, there is clearly reasonable doubt regarding the allegations of Police, and Mr Dickie, and the information shared between Mr Dickie, Police and Housing NZ Corporation.

[13]    If Mr Mihaka had been aware of the major discrepancies between the Complainant's statement given to NZ Police and the evidence he gave in Court on oath he would certainly have cross examined Police and Mr Dickie regarding the discrepancies.  If he could afford a good lawyer he would sue Housing NZ Corporation and Police for slander as well as have been able to successfully challenge these discrepancies at the original trial, and establish Reasonable Doubt regarding the allegations of Mr Dickie and NZ Police.  Persons who cannot afford lawyers are being discriminated against in the Courts, the decision Criminal Bar Association v Attorney General establishes this.  People on low incomes such as Mr Mihaka can not afford lawyers, and Mr Mihaka was clearly let down by the two lawyers who filed the appeals because neither one of them alluded to any of these discrepancies or even noticed that no Disclosure had been provided.

[14]    Mr Mihaka was not aware of these major discrepancies because the New Zealand Police never gave him ANY Disclosure, either initial Disclosure or full Disclosure, and unlike the other parties and the Court, he was unaware of the provisions of the legislation such as the Criminal Disclosure Act.  Mr Mihaka was not familiar with the current enactment of the Criminal Disclosure Act, but Police were, and his appeal lawyers were, however neither the Court or either of the appeal lawyers appear to have addressed either the fact that Mr Mihaka had never received Disclosure, or the fact that the Complainant's statements to New Zealand Police and Housing New Zealand Corporation (HNZC) directly contradicted the evidence he gave on oath.  Despite the obvious need for an amicus, and the recommendation of Judge Hastings that an amicus be appointed, one was not appointed and nobody explained to Mr Mihaka that he was entitled to Disclosure.

[15]    Mr Mihaka has also recently received information showing ongoing prejudice and bias on the part of New Zealand Police and HNZC directly related to these matters in that Housing New Zealand has recorded information stating that New Zealand Police told HNZC that Mr Mihaka "is a serious cannabis smoker and also uses methamphetamine" and lives in a "suspected P house".  The eviction, the assault allegation, and 'information sharing' between New Zealand Police, the Complainant, and Housing New Zealand Corporation, are indisputably linked.  Mr Mihaka's appeal lawyer Nathan Bourke wrote to New Zealand Police, and Housing New Zealand Corporation, regarding the slanderous and defamatory nature of the allegations they have made about Mr Mihaka.

[16]    Further issues arise regarding credibility in that New Zealand Police deny telling Housing New Zealand Corporation that Mr Mihaka "is a serious cannabis smoker and also uses methamphetamine" and lives in a "suspected P house".   Mr Mihaka is not confused, the Complainant is confused, and New Zealand Police are confused, and Housing New Zealand Corporation is confused.  In light of the ongoing denials of both parties it is beginning to appear that either NZ Police or Housing NZ Corporation is deliberately lying in relation to these matters and it is clear that Mr Mihaka has not received a fair trial.  It is not clear to Mr Mihaka whether in fact any Judge presiding over these matters has ever seen the Disclosure or noticed these discrepancies, but it is clear to anyone that there has been a serious miscarriage of justice.

[17]    It is clear that the New Zealand Police Summary of Facts and the statement that the Complainant made to New Zealand Police, and the major discrepancy between these two documents and the information recorded by HNZC regarding the allegations of the complainant, directly contradicts the evidence given by the Complainant in Court, if what the complainant said on oath is true, Mr Mihaka could not have committed the alleged crime as stated by Police on the charging documents and summary of 'facts' and other information  It is also clear that these discrepancies were never explored or even mentioned by District Court Judge Kelly, and Mr Mihaka had no opportunity to mention them or explore them because firstly, he was totally unaware of the Disclosure and the other information, and secondly, because Judge Kelly directed proceedings in a manner which gave Mr Mihaka little opportunity to be heard on several matters of vital relevance.

[18]    Mr Mihaka respectfully applies for a recall of the decision of France J on the grounds that there been a serious miscarriage of justice because fresh evidence has become available since the trial,this evidence clearly shows that Mr Mihaka did not receive a fair trial.  This fresh evidence was not available at the trial because New Zealand Police may or may not have given Criminal Disclosure to a Duty Solicitor at the Porirua Court, there is certainly no evidence it was received by anyone, and  nobody ever gave (or even showed) the Disclosure to Mr Mihaka or his appeal lawyers as required by the Criminal Disclosures Act 2008, and it is clear from the Court transcript of the trial that the Court did not ever address the alleged "Facts" in the Summary of Facts, or the Complainant's statements to Police and Housing NZ Corporation, or the serious discrepancy between the information put to the Court by Police and the evidence of the Complainant, nor did the Court address the issue of bias of Police against Mr Mihaka when there is clear evidence this bias exists, or the relevance of the bias or the discrepancies in the information and the evidence to the credibility of the other parties.  This evidence was not considered by France J, it seems he was not aware of any of it because Police never provided Disclosure and the appeal lawyers never noticed it had never been provided by Police or received by Mr Mihaka.

Mr Mihaka respectfully submits that the onus is on the prosecutor or the Court to ensure that the Defendant receives Disclosure prior to the trial, particularly when the Defendant is self represented, and particularly when the Defendant is conducting his own defence in Te Reo a o tatou matua tupuna.  Mr Mihaka was not even aware of the Criminal Disclosures Act, or the Criminal Proceedings Act 2008 or most of the other legislation applicable to the matter, he hasn't appeared in Court since 2008.  He was provided with a translator, but the language of the Court is often Latin, and despite Judge Hastings noting that he felt it would be in the interests of the Court to appoint an amicus, terms like amicus curiae, mens rea, actus reus, etc, don't seem to have been explained to Mr Mihaka, and Mr Mihaka respectfully submits that in the case of a self represented defendant conducting his own defence in Te Reo a o tatou matua tupuna, Judge Hastings' wise suggestion that an amicus be appointed should have been heeded, and that in the interests of justice, and due diligence, that should have happened.  It is likely that if an amicus had been appointed Mr Mihaka would have been more likely to have received Disclosure, and more likely that the discrepancies would have been noticed before now and accorded fair weight in regard to the credibility of the Complainant.  The fact is that the discrepancies exist, they have clearly not been addressed by the Court, and there has been a serious miscarriage of justice.

Finally, please excuse any errors in the form of this submission, I am not a lawyer as will be obvious and do not intend any disrespect to the Court, and apologise for undue repetition; time constraints and lack of resources restrict the ability to edit it well, but I do believe that the substance of this application has merit and respectfully request the Court to consider it fairly and objectively and give due weight to the new evidence recently obtained by Mr Mihaka and clearly not previously considered by the Court due to his lawyers not noticing it and Mr Mihaka not being informed of his rights under the Criminal Disclosures Act and other legislation, or provided with Disclosure.

Katherine Raue
Maori Agent for Te Ringa Mangu Mihaka

Annexed:
1.    Decision of France J
2.    Legal bills x 2
3.    Doctors letters
4.    Infringement notices x 2
5.    Dickie statement to Police
6.    Constable Saunders notebook
7.    Police Summary of 'Facts'
8.    Housing NZ Corp regarding time of Dickie allegations
9.    Transcript Dickie evidence
10.    Housing NZ Corp regarding methamphetamine, cannabis, suspected P house
11.    Charging Document, "Nathan MIHAKA", Judge Hastings regarding amicus
12.    Defamation correspondence


        Address for service:    kateraue@gmail.com and dunmihaka@gmail.com
                    C/- Katherine Raue
                    [address withheld]

[ - This post will be updated - we have 30 days to submit an affidavit.  The information referred to will be uploaded, beginning with the documents below:]
2.   Direct quote from letter of Mr Mihaka's doctor regarding this incident:
"I am unclear of the recent circumstances surrounding the night he spent on a road in his car near National Park village, but regard it as inappropriate that any person of sevently four years old should, of necessity, sleep in a car on that stretch of road at that time of year."
3.   Infringement notices:


4.   Dickie statement to Police:

5.   Arresting officer's notebook:

6.   Police Summary of 'Facts' [sic]:

7.   Housing New Zealand Corporation records regarding time of alleged offence:

8.    Transcript of Warren Dickie's evidence in Court on oath:

9.    Housing NZ Corporation records regarding methamphetamine, cannabis, suspected P house:
Correspondence with the Court regarding this application is as follows:
To the Registrar of the High Court at Wellington - 7 September 2016:
1.    I emailed an urgent application for recall of a judgment of Simon France J in the matter of Te Ringa Mangu Mihaka v Police, including an application for waiver of any applicable fee, to the High Court at Wellington on 25th August 2016 but have not had any response to the application or acknowledgment of receipt, and am writing to confirm that it has been received and is being actioned.
Please acknowledge receipt of the application urgently - this matter is the subject of imminent hearing in the Human Rights Review Tribunal and it is vital that the application for recall is acknowledged prior to this hearing.  There has been a serious, substantial miscarriage of justice, there is fresh evidence, and this application is URGENT.  
~~~~~~~~~~~~
Hello Katherine

I refer to the Application for Recall of Decision referred to in your email below.

Please advise the legislation you rely on to file the application and have the judgment of Simon France J recalled as I have not been able to find any reference in the Criminal Procedure Act 2011 which allows the filing of this application some 14 months after the decision was made.

I look forward to hearing from you.
Kind regards
Sheena

Tena koe Sheena,

Alternatively, 2.3 - the miscarriage of justice is serious and the information was not made available within 5 working days - the application was made as soon as the information was made available by the other party.
http://www.legislation.govt.nz/act/public/1908/0089/latest/DLM1818573.html

Nga mihi
Katherine Raue
Maori Agent for Te Ringa Mangu Mihaka
~~~~~~~~~~~~~~~~
Both rule references relate to Appeals and Reviews in the Civil jurisdiction of the High Court, not the Criminal jurisdiction, which is what your appeal relates to.  The criminal appeal process is governed by the Criminal Procedure Act not the Judicature Act.  I am therefore unable to accept the Application for Recall.

I respectfully suggest seek legal advice as to what other options might be available to you to have Mr Mihaka's conviction readdressed in the Courts.

Kind regards
Sheena


~~~~~~~~~~~


20 September 2016
Please treat this application as an URGENT application for LEAVE TO APPEAL and JUDICIAL REVIEW of the  decision of France J on the grounds that fresh evidence has become available and it is CLEAR AND INDISPUTABLE that a serious miscarriage of justice has occured, and it is an absolute TRAVESTY that Mr Mihaka and I are being fobbed off by a registrar! - Maori did not cede sovereignty Sheena, we did not agree to be governed like this and Mr Mihaka wants a FAIR HEARING - PLEASE FORWARD THIS APPLICATION TO JUDGE FRANCE WITHOUT FURTHER DELAY - ANY FURTHER DELAY IN DOING SO WILL BE VIEWED AS AN ATTEMPT TO PERVERT THE COURSE OF JUSTICE!
Nga mihi
Katherine Raue 
Maori Agent for Te Ringa Mangu Mihaka




Please treat this application as an URGENT application for LEAVE TO APPEAL and JUDICIAL REVIEW of the  decision of France J on the grounds that fresh evidence has become available and it is CLEAR AND INDISPUTABLE that a serious miscarriage of justice has occured and it is an absolute TRAVESTY that Mr Mihaka and I are being fobbed off by a registrar! - Maori did not cede sovereignty Sheena, we did not agree to be governed like this and Mr Mihaka wants a FAIR HEARING - PLEASE FORWARD THIS APPLICATION TO JUDGE FRANCE WITHOUT FURTHER DELAY - ANY FURTHER DELAY IN DOING SO WILL BE VIEWED AS AN ATTEMPT TO PERVERT THE COURSE OF JUSTICE!