"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"

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!



Friday, August 12, 2016

The Dun Mihaka clause - the straw that broke the camel's back.

Hansard  (click on link to view) 10 April 1986 - Parliament of Aotearoa New Zealand*:

The Minister of Maori Affairs, Koro Wetere, introduces the Maori Language Bill.

It seems to be news to Merv Wellington and John Banks that Standing Orders were changed to allow members of parliament to address the House in te reo a o tatou matua tupuna, the Maori language.

Following calls of "Rubbish" from members of parliament Peter Tapsell and Ken Shirley in response to Winston Peters's long winded self important utterances, Winston announced thus in regard to Clause 4, Right to speak Maori in legal proceedings, regarding the issue of a competent Maori translator being provided to the Court in the event of a defendant electing to address the Court in the national language of Aotearoa, te reo a o tatou matua tupuna:
"There is a danger there that must be carefully considered.  The clause is beginning to appear to me to be the Dun Mihaka clause.

An Honourable Member:  Ha ha

WINSTON PETERS:  Government members may laugh, but the process we are talking about is the proper process for the Court.  I can envisage certain people abusing that process by turning up without having given intention or any notice of that matter, and hamstringing the Court in a procedure reliant on the legislation purely to filibuster proceedings that could and should have been rightly and expeditiously dealt with."
Koro Wetere goes on to call Winston "incompetent", after Winston states that he knows all Koro's cuzzy's, they all vote National and are all great friends of his, then Winston goes on to address clause 6 of the schedule, claiming that it would lead to the sudden spawning of innumerable 'quangos' (quasi-autonomous non-governmental organisations):
"If Titewhai Harawira comes down and leans on the Minister he will give her 50.  And if another radical such as Dun Mihaka comes down he will give him another 50. "  (Before Russell Marshall shows a bit of decorum and addresses the House appropriately and elegantly in te reo a o tatou matua tupuna.)
The irony.

Let's talk about hamstringing the Court and filibustering proceedings that could and should have been rightly and expeditiously dealt with, but weren't, and the cost of funding the legal gravy train and whether tangata whenua are getting value for money.  And Ken Shirley for that matter.

Dun Mihaka has been discriminated against by NZ Police, Housing New Zealand Corporation, and the New Zealand Courts and legal system.  Despite Maori being over represented in the so called justice system, and the recent admission by NZ Police that they suffer from "unconscious bias" against Maori, nothing's changed.

Housing New Zealand Corporation simply accepted the verbal complaint of Warren Frederick Dickie, without bothering to follow their own policies and procedures, or conduct any sort of proper investigation, as did Police, and the District Court.  Tax payer funded public servants failed to show any due diligence, but have shown, and continue to show, bias and prejudice.

The writer has spoken to witnesses who say that Mr Dickie was known to be domineering, bullying, manipulative and dishonest.  Not to say that Mr Mihaka's behaviour is not sometimes domineering or bullying, but many people who know him well say he's not a liar, if he does something he doesn't deny it - if asked "Did you commit this act?"  Mr Mihaka always says "Yes I did and I'm glad I did and if I had the chance I'd do it again."  Those people also find Mr Dickie's account of things implausible, for several reasons, but justice isn't about speculation, it's about facts.

All that needed to be established by District Court Judge Kelly was whether or not there was Reasonable Doubt.  There clearly was - a confused individual who gave an account of touching Mr Mihaka inappropriately and then having a massive panic attack, who said that whatever happened allegedly happened at around 7:30 in the morning just after he awoke and got up and made coffee, then changed his story to it allegedly happening at around 9 - 9:30 at night as he was about to go to bed - on both occasions Mr Mihaka was apparently asleep when the 'touching' occured.  The writer would not 'touch' Mr Mihaka, or anyone else for that matter, who was asleep, without very good reason.  Touching isn't ok, unless it's invited, or welcome, Mr Dickie's touching does not seem to have been either invited or welcome, and the Fact that NZ Police saw fit to leave this Fact out of their Summary of the Facts presented to the Court is further evidence of their conscious or unconscious bias.

This legal leviathan has so far cost Mr Mihaka considerably, in financial terms, but more so the attack on his mana.  He has engaged at least three lawyers, none of whom even noticed the major discrepancies in the evidence, none of them have pointed them out to the Court.

Here's another one:
Constable Saunders arrested Mr Mihaka the minute he opened the door, and told him his rights.  He'd made up his mind to arrest Mr Mihaka prior to even knocking on his door.  He then told him that the allegation against him was "that you assaulted Warren Dickie on 1st July 2014" - not 30th June!





* - Abel Tasman did not "discover" Aotearoa, nor did he name it, and nor for that matter, did he ever set foot on this fair land, te taonga o te tangata whenua, who lived here, and who had already named it, and while tangata whenua certainly have no objection to tauiwi calling themselves "New Zealanders" or whatever if they wish, most of us politely decline that label.  And while John Key just spent over $26,000,000 trying to make out we've only got one flag, there were TWO parties to Te Tiriti, and TWO flags.  Te Kara - Te Haki Tuatahi, the flag of the United Tribes of Aotearoa, has never been decommissioned, and Maori never ceded sovereignty, we didn't sign up for this travesty of so called 'governance'.  Our tupuna chopped down the very flagpole he gifted the British Crown agents because they refused to fly BOTH flags from it.  Not much to ask.  The Treaty IS a fraud, and this fraud perpetuates and plays out daily in the Courts, the prisons, the morgues, and on the streets.  It's the putting right that counts.

Saturday, August 6, 2016

Housing NZ Corporation - caught out making it up again:

Upon arriving at the Human Rights Review Tribunal on 3rd August 2016 it was discovered that Crown solicitors Meredith Connell had sent Mr Mihaka and his Maori Agent a large amount of information the previous day, including Housing NZ Corporation's "Anti Social Behaviour Guidelines" management plan.

While attempting to read this new information at the same time as engaging with the Tribunal Mr Mihaka and his Maori Agent noticed that there were clear policies and procedures required which had not been followed.  In particular, it was noticed that Housing NZ Corporation was required to obtain a detailed statement from the person making the allegation, in this case, Mr Warren Frederick Dickie.

It is quite clear that Housing NZ Corporation treated Mr Dickie and Mr Mihaka quite differently, and it is quite clear that Housing NZ Corporation have discriminated against Mr Mihaka, and it appears that the only real difference between the two is their ethnic background, Mr Mihaka being he uri o nga tangata whenua and Mr Dickie being a pakeha.

Police also have recently admitted to "an unconscious bias against Maori", and it is widely recognised that Maori are over represented in the justice system. 

Mr Mihaka in particular has been let down by the justice system.  Judge Kelly had a duty to view the evidence and weigh it up and assess credibility of the parties accurately.  She failed to even notice the serious discrepancy between the Police Summary of 'Facts', Mr Dickie's statement to Police, and the evidence given on oath.

Housing NZ Corporation's Guidelines clearly state that staff are required to comply with the Privacy Act when collecting, storing or using information.  It is clear and indisputable that they have deliberately ignored and flouted these "Guidelines", as well as showing an utterly arrogant disregard for the law.

The Guidelines state that Housing NZ Corporation are required to take a detailed statement from the complainant - it is clear to anyone reading the Guidelines that this statement is required to be IN WRITING, and signed by the complainant - "write everything down in an incident summary form (T-463) or on a notepad if you do not have a form with you.":

Reference to an interpreter seems to have been ignored - Mr Mihaka speaks Maori, it is his first language, it is also one of our official languages, however Housing NZ Corporation decided that an interpreter was not needed when dealing with Mr Mihaka, despite the obvious communication difficulties.

"Place a copy [of this statement] in the S drive . . .  using appropriate folder and subfolder and make sure a copy is put on the tenant hard file."

It was not until after 3pm that the Maori Agent noticed this requirement in the Guidelines and began to question Meredith Connell as to the whereabouts of this statement.

To their great discredit, after consulting with Kathie Furfie of Housing New Zealand Corporation, the Meredith Connell solicitors dishonestly tried to assert that such a statement HAD been taken, but not put to paper.  The irony of being accused of "artificiality" by the Tribunal is offensive given the blatant dishonesty and lack of good faith shown by Housing NZ Corporation and their tax payer funded Crown solicitors, Meredith Connell, - they are blatantly LYING - there was no statement recorded - Housing NZ Corporation never bothered to even take a statement from Mr Dickie prior to their decision to evict Mr Mihaka on the basis of common gossip and a pack of LIES cooked up by Mr Dickie!

Nothing whatsoever was written down - no statement was recorded.  Meredith Connell and HNZC continued trying to blatantly lie about this to the point where it is now clear that they are subsidised by the taxpayer and deliberately using those resources to discriminate against and bully tangata whenua and deliberately pervert the course of justice and continue to do so through every Crown colonial Court and Tribunal in the land, and those Courts and Tribunals simply carry on the charade - a big gravy train - a merry go round, shunting tangata whenua and M(atua) Mihaka through a series of flaming hoops, moving the goalposts, rearranging the deckchairs on the Titanic - while Sir Ron Young and others raise the alarm and plead for lawyers to blow the whistle before it's too late.  Sadly, they did that a few years ago, but only in terms of how it affected the income of lawyers, not the effect on their hapless victims clients, the decision upheld the claim, and can be found at this link- Criminal Bar Association v Attorney General.

Proceedings deteriorated markedly following this revelation and Meredith Connell's strenuous assertion that a statement WAS taken, just not written down, and the hearing did not end well, it being evident to everyone that Meredith Connell were LYING and that the required statement did not exist and never did.

Maori Agent Raue and Mr Matua Mihaka also questioned the statement of Ms Stephanie Smith to the District Court Tenancy Tribunal - which appear to be clear evidence of blatant perjury:
Adjudicator:
"Obviously there's a feeling over here that there's been something unjustified about that decision.  This is an opportunity to respond to that if you wish,  Are you aware of what's behind that?"

Ms [Stephanie] Smith [for HNZC]:
"I am, the 90 day notice was issued prior to us breaching the tenant for the alleged assault."
 What utter bollocks!

Then there's the letter from Te Ringa Mangu Mihaka's lawyer Nathan Bourke to Police and NZ Police's response - which categorically DENIES the claims Housing NZ Corporation made about information ALLEGEDLY received from Police!

This is nothing but an orchestrated litany of lies which has made its way through the District Court the High Court the Court of Appeal and the Supreme Court and justice has STILL not been done!

The so called New Zealand justice system is nothing but a sham - a sick joke!  A revenue gathering machine designed to fleece tangata whenua and the working classes while lining the pockets of shady bankers and financial speculators and other fellow liars in the old boys network!

Maori did not cede sovereignty and never agreed to be governed like this - FOR GOOD REASON!  This is NOT justice and will NOT be tolerated.


Police deny Housing NZ Corporation's claims:

Below is page 120 of the bundle of documents provided to Mr Mihaka and his Agent the day prior to the hearing in the Human Rights Review Tribunal.  This is one of the pages containing defamatory allegations about Mr Mihaka.  On 21 April 2015 Naomi Davies of Housing New Zealand Corporation alleged that "Police have confirmed tnt [tenant] to be a serious cannabis smoker and although they can not confirm, they have heard that the tenant is using meth".  Mr Mihaka first became aware of this notation in March 2016 whereupon he immediately requested that it be removed or corrected, a request which was refused by Kathy Furfie of HNZC.
Mr Mihaka's lawyer wrote to Police regarding this outrageous defamation, and guess what?  NZ Police deny telling Housing Corp any such thing.

The reference above to "Karaka" seems to refer to a person called Karaka Tuhakaraina, who is part of the Housing NZ Corporation's legal department apparently - and given to a bit of exaggeration and invention himself - in another piece of information recently obtained, this Karaka Tuhakaraina states that Mr Mihaka actually ADMITS assaulting Mr Dickie, which is blatantly untrue to the point of delusional - Mr Mihaka has always strenuously denied assaulting Mr Dickie.


Contrary to the claims that Mr Mihaka "continue to antagonise others", there is no evidence whatsoever of any complaints of antagonistic behaviour being received from anyone other than Mr Dickie!

The letter from Mr Mihaka's lawyer to Police regarding this matter is at this link, and the letter from Police denying HNZC's claims is at this link.  Mr Mihaka considers that there are a number of inaccuracies in this letter, including the claim that Constable Tahere was "helpful" toward Mr Mihaka.  Mr Mihaka says that in the time he has known Constable Tahere it has been apparent to Mr Mihaka that Constable Tahere was more inclined to be helpful to people such as Housing Corporation staff and Mr Dickie, and that there was a history of animosity between Constable Tahere and Mr Mihaka.  The offhand manner of this response is both ignorant and arrogant - ignoring the fact that this is a serious issue which has resulted in the imminent eviction of Mr Mihaka and the recording of outrageous false allegations against him attributed to NZ Police and Warren Frederick Dickie, and arrogant in the continued allegations of assault despite the nebulous and conflicting claims of Mr Dickie which simply do not stand up to scrutiny.  Despite all this it is perfectly clear that Police categorically deny the claims of HNZC.

When Mr Mihaka's Maori Agent collected the files from the two lawyers previously acting for Mr Mihaka, Nathan Bourke and Brett Crowley, there was no sign whatsoever of any Police statement from Mr Dickie regarding the allegation against Mr Mihaka.  There was a Summary of Facts on the files, which Mr Mihaka was unaware of.  When a person engages a lawyer, the lawyer receives all information on that person's behalf, so the lawyers had the Court transcript and other information, but Mr Mihaka had never seen the information on the lawyers' files, including the transcript and the Summary of 'Facts' (sic), let alone Mr Dickie's statement to Police, which it seems was never seen by Mr Mihaka or either of his lawyers.  Mr Mihaka's Maori Agent made enquiries with Nathan Bourke and Brett Crowley and both confirmed that they had never seen any statement made by the complainant to NZ Police, so the Maori Agent made a formal request according to the Criminal Disclosure Act 2008, the Privacy Act and the Official Information Act for all information regarding this matter, in particular any statement made to NZ Police by the complainant.

Eventually the following statement was provided:
Page 2 (above) shows that in fact Mr Dickie 'assaulted' Mr Mihaka by touching him unnecessarily, while he was asleep.  ". . . he dozed off in the early part of the evening . . . it was then that I . . . tapped him . . . it was about 9 - 9:30 at night.  That's when the assault took place I knew Dun was asleep and I tapped him."  Mr Dickie, in effect, assaulted Mr Mihaka, not the other way around.  Police left this FACT out when they wrote up their Summary of "Facts".

This is a very serious discrepancy.

In his sworn evidence Mr Dickie states the incident happened at around 7:30 in the morning just after he awoke and made coffee - NOT 9:30 at night as he was about to go to bed!


Page 3 of Mr Dickie's statement makes it quite clear that he is prone to panicking, and that he did panic.  He imagined he was under attack and panicked, probably hyperventilating to the point that he had trouble breathing.  He estimates that Mr Mihaka had his hands on him for "between 30 seconds and one minute."  He doubles this to one to two minutes in his sworn evidence, demonstrating a propensity for exaggeration and embellishment.

Page 4 of the complainants statement against Mr Mihaka was provided to Mr Mihaka with the last four lines blacked out:


We finally obtained a copy of the unredacted page, and surprise, surprise - it seems that HNZC obtained the defamatory information regarding Mr Mihaka from none other than Mr Dickie.   They seem to have also exaggerated, claiming that they received the information from Police when in fact, the information came from Mr Dickie.