Bent Cops

34 PAPER TRAIL, YOU BE THE JUDGE. Judge DAVID CAMERON

 

“PAPER TRAIL”

YOU BE THE JUDGE

 

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IN THE COURT OF APPEAL OF NEW ZEALAND                          CA305/2013

BETWEEN           JACOBUS VAN DER LUBBE

Appellant

AND                     THE QUEEN

Respondent

Counsel:                                Appellant in person

Crown Law Office for Respondent.

NOTICE OF APPLICATION TO VARY OR AMMEND THE GROUNDS OF APPEAL

 Dated the 10th day of March 2014.

 Presented for filing by:

                                         Jacobus van der Lubbe

                                         Appellant

22A Paterson Street

Wanganui 4500

AMMENDED GROUNDS FOR APPEAL

10/03/2014

1        At my first appearance and at almost all of my subsequent appearances Judge David Cameron displayed a very hostile and biased attitude, which showed bad faith and partiality. (Lawyer Debbie Goodlet witnessed first appearance.)

  1. 2        Also at my first appearance Judge Cameron refused my request for a reasonable timeframe to prepare my defence.
  2. 3        When I made an Application for a reasonable time to prepare extension Judge Cameron refused it.   (Show Application.)
  3. 4        Then when I Applied to the High Court for a review of Judge Cameron’s decision not to allow me reasonable time to prepare my defence he backed down and vacated the early trial date. His earlier oppressive stance was nothing less than bullying and displayed the same cynical indifference to my legal rights that the NZ Police have displayed since 1984. (Show High Court Application.)
  4. 5        At one preliminary hearing Judge Cameron asked me how many witnesses I intended to call and to name them, which I did; I was sick with the flu at the time and thought that I had to do that because the Judge requested it, and Judge Cameron and the Crown Prosecutor wrote down the names I gave.
  5. 6        Later I made an Application that Judge Cameron stand down from the case because I believed he was biased against me and that I would not get a fair trial if he was in control but he refused to do so and then attempted to intimidate me from presenting a vigorous defence by writing the following,

(9) “Mr van der Lubbe. I will say to you now. I expect you to conduct yourself with proper decorum throughout this trial, and that includes not interrupting a Judge when he is making a decision, and if you do not conduct yourself with proper decorum, you can expect me to hold you to account and I do not think that would be necessarily in your interest in front of a jury. So you will show proper courtesy and respect to the Court process throughout this trial.”  (Show Judge Cameron’s negative “Oral Decision” and Judge Clapham’s words of praise.) ADD THE BIT ABOUT HIS “AS LATE AS FRIDAY” CRAP AND THE CURRENT CANTERBURY STAND DOWN DEBATE  HERE.

 

    1. 7        I had arranged with Court staffer Rodney Newport that he would have a defibrillator in the Court House on trial day and he said he would arrange it. I made this request because I suffer from stress-induced arrhythmia. On trial day I asked Judge Cameron if the defibrillator was on hand he replied, “We’ll get one in if the need arrises.” Judge Cameron obviously doesn’t know that a defibrillator’s function is to revive an already incapacitated person who will die if not revived immediately. If Judge Cameron is aware of the machines purpose and functions then his dismissal of my request showed a callas disregard for my health and safety. Judge Cameron’s refusal of my bone fide request that a defibrillator be on hand caused me to be more anxious and stressed. Subsequent events (my heart attack) prove that my health concerns at the time of trial were well founded. (Show “Acute Infarction” document.)
    2.  
    3. 8        I had also arranged with Rodney Newport that on trial days I was to be allowed to use the electronic TV screens to show my defence photos and documents to the jury, Mr Newport said, “The prosecution does, so I don’t see why you can’t.” But that request was also refused by Judge Cameron and Deputy Court Registrar Carol Brookie without good reason, which prevented me from presenting my defence properly. Judge Cameron dismissed my request with, “I don’t think it’s sufficiently important for that to occur.” Another example of Judge Cameron’s cynical indifference to me and my legal rights. (Show the relevant portion of the trial transcript.)
  • 9       Judge Cameron ignored Judge F W M MacElrae’s earlier decision dated 24 August 2012 that I must be allowed to try and prove that there existed a decades long pattern of maleficence by the NZ Police against my family and that the police had colluded with the so-called “victim” Stephen Poynter to try and provoke me into an unlawful act which forced me to act in self defence. Judge Cameron’s most unreasonable decision to ignore Judge MacElrae’s earlier just decision, which I was relying on for my defence, and suppressing a large proportion of my defence submissions resulted in me losing my limited concentration and threw my entire defence into disarray.

 

I had prepared my brief of evidence outlining the pattern of corrupt police behaviour on the understanding that Judge MacElrae’s decision was binding on all subsequent hearings. Not only was I prevented from presenting my full prepared brief of evidence to the jury, but the Court allowed me to paint myself in a very bad light before cutting me off midstream and then prevented me from presenting the follow-up evidence that demolished the despicable accusations against me that had I had just outlined. These false allegations were part of the pattern of malfeasance that Judge MacElrae alluded to in his decision of 24 August 2012. Not only did Judge Cameron ignore Judge MacElrae’s earlier decision, but when I attempted to introduce the documents that I had earlier applied to be admitted as evidence because I believed they tended to corroborate my argument that I acted only in self-defence on the days mentioned in the charges, Judge Cameron, acted contrary to what he said in [5] of his of 25 January 2013 reserved decision, “If the defendant wishes to pursue their introduction during the trial he is free to apply at that time.”, and dismissed my attempts to introduce most of them saying they were “Irrelevant.” (Show Judge Cameron’s decision.)

 

  • 10  Also I had earlier turned down Judge M J Behrens QC’s offer of a 12 month good behaviour bond for a prosecution insisted guilty plea because I was confident that justice would prevail because of Judge MacElrae’s decision that I must be allowed to try to prove the police conspiracy to allow Stephen Poynter carte blanche to provoke me into a prima facie illegal act.          which tended to prove that I was forced to act in self-defence          under the law.   

 

  1.  
  2.  
  3.          because of the Police conspiracy to deny my family protection
  4.          Judge Cameron simply refused to let me introduce evidence

           3. Self-defence

31 SECTION 48 of the Crimes Act 1961 provides:

Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

This defence recognises that people have a right to defend themselves against violence or threats of violence, so long as the force used is no more than is reasonable for that purpose. The law does not require people to wait until they have been attacked before taking action to protect themselves.

 

    1. 11   After the jury asked a question about provocation Judge Cameron admitted that he was not up to speed with provocation’s current status and asked the Crown prosecutor for his opinion and not unsurprisingly he said that provocation could not be applied to the matter and Judge Cameron, without consulting a law book, then misdirected the jury to rule out provocation as a defence. HIS EARLIER SUMMING UP TELLS A DIFFERENT STORY ALTOGETHER. He categorically stated that provocation “is not a defence to the charges”. SEE ADDITION BELOW.
  • 12  I GOT THIS BIT WRONG     I WROTE THIS FROM MEMORY BUT MY MEMORY IN THIS INSTANCE FAILED ME.  

 

  1.                                                                                                                                                                                         Judge Cameron also misdirected the jury by failing to mention or rule on my claim of justification and or self defence as defences whereas Judge MacElrae had earlier mentioned justification as a defence.

I have now been supplied with a copy of Judge Cameron’s summing up and although he did traverse the provocation,  justification and self-defence matters I believe he misdirected the jury when he said,

 

“Now if you accept Mr Van Der Lubbe’s evidence as to all that then you may well think that there is an element of he having been provoked into these actions by his neighbour. Provocation, though, is not a defence to the charges Mr Van Der Lubbe faces but if accepted could and would be taken into account in imposing any penalty should Mr Van Der Lubbe be found guilty of either or both the charges.”

 

Even though Judge Cameron stated that provocation should and would be taken into account, when the time came to sentencing, he did no such thing. He made no mention of me having been provoked or provocation in his sentencing speech.

 

And if provocation, self defence and justification were no defence to the charges I faced why did Judge  F W M MacElrae’s say in his earlier decision dated 24 August 2012 that I must be allowed to try and prove that there existed a decades long pattern of maleficence by the NZ Police against my family and that the police had colluded with the so-called “victim” Stephen Poynter to try and provoke me into an unlawful act which forced me to act in self defence, if no such defences existed?

 

Part 3 Matters of justification or excuse

20 General rule as to justifications
  • ·         (1) All rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to any charge, shall remain in force and apply in respect of a charge of any offence, whether under this Act or under any other enactment, except so far as they are altered by or are inconsistent with this Act or any other enactment.
  • (2) The matters provided for in this Part are hereby declared to be justifications or excuses in the case of all charges to which they are applicable.
  • Compare: 1908 No 32 s 40

 

Another question from the Jury about intent was also misdirected by Judge Cameron.

 

     12A   I will amend if necessary12A after I am provided with the transcript and DVD recording of the Judge’s answer on intent to the Jury.

 

  1. 13   Judge Cameron hushed me up when I tried to point out the 22 shot sounds on the Police 111 recording of 23 April 2010. I wanted to demonstrate the difference between barely audible suppressed 22 shots at close proximity and fired almost directly at me and suppressed 243 shots fired away from me at over 100 meters and heard through a closed window, the first of which woke me up from my sleeping pill induced sleep.
  2. 14   Judge Cameron refused to allow me to show the jury my police and court documents relating to Sergeant Drew Allison’s attempt at perverting the course of justice in relation to Poynter’s false allegation that I had stolen two of his cattle. (Bottom of page 91 (25) and top of page 93 down to (10) of the trial transcripts) This evidence tended to prove that Stephen Poynter with police connivance was indeed carrying out a concerted plan to get me into trouble with the law.
  3. 15   At the final pre-trial hearing both Judge Cameron and Deputy Registrar Carole Brookie told me that there were five free days for the week of the trial but then Judge Cameron refused to allow me to present my complete defence evidence because he wanted the trial to end early as he “had a flight to catch.” So there was never five free days or something came up and my case was shortened unfairly at my expense to expedite Judge Cameron’s travel plans or other matters.
  4. 16   Judge Cameron refused to let me try to prove that the Police stance that there was no evidence that my cat had been shot was false and corrupt. He refused to allow me to show the wounded cat photos, veterinarian reports and xrays to the jury.
  5. 17   Judge Cameron misdirected the jury by not telling them to bear in mind that my only motivation was to try and stop the gunfire danger posed by Stephen Poynter to my family and domestic animals. Two of the three Jury questions about provocation and intent indicate that they were looking for a way to acquit me but Judge Cameron would have none of it. He wanted me to be convicted.
  6. 18   Judge Cameron totally ignored my closing statement and went along with the prosecution case all the way. It was obvious from my first and subsequent appearances that Judge Cameron had predetermined the outcome and he did everything within and without his power to deny me a fair trial. Unlike all other adjudicators in this matter, Judge Cameron never once advised me to obtain legal counsel. Nor did he at any time show any sympathy or help me along the way, his attitude towards me throughout was dismissive, obstructive and oppressive, hence my application the he stand down or be stood down from the case.                                                                                                                                  But having said that I must add that during one of the pre-trial hearings Judge Cameron, in a moment of unprecedented sympathy asked the Crown Prosecutor and me if we could try to put the matter to rest by me agreeing to a good behaviour bond or diversion but those discussions came to nought because the Crown offers to settle the matter required me to admit guilt, something that I was not prepared to do because of Judge MacElrae’s earlier decision “that I must be allowed to try and prove that there existed a decades long pattern of maleficence by the NZ Police against my family that forced me to act the way I did”, and I firmly believed that a guilty plea would have encouraged the aggressor Stephen Poynter to continue his deadly game of, how far can I push the old Dutch bastard before he finally cracks and moves off the land that I covet? It didn’t cross Poynter’s deluded mind that I would rather die (almost did) than capitulate to his aggressions.

 

 

  1. 19    At sentencing Judge Cameron continued his bullying by warning me not to interrupt him during his sentencing speech (I replied that I wasn’t a primitive) and he then continued and totally ignored my six page rebuttal to the Crown’s sentencing submissions and simply went along with the Crown’s usual misinformation. No other Judges have deemed it necessary to warn me about my behaviour in Court, quite the opposite in fact, as I said above, Judge Clapham went out of his way to congratulate me on my concise and respectful submissions. And then to compound matters Judge Cameron stated wrongly that I had asked him for a discharge without conviction. The only thing I did actually read out to him from my rebuttal he got wrong.
  2.  

(He said he had read it earlier but it is obvious that he didn’t bother.) What I read to him was, “ As I said before, there is one other fair and viable alternative to trying to beat me into submission and that would be to discharge me without further penalty.” He then stated in his sentencing speech that I had requested a discharge without conviction but when I pointed out his mistake he admitted it and amended his decision. The Crown had asked for a fine of $1000 for each charge, with no mention of Court costs and that is exactly what Judge Cameron imposed. Just as he did during my trial, Judge Cameron did exactly as the Crown requested. It’s as though they are joined at the hip.

 

  1. 20                       Misconduct by the prosecution.
  2. 21   Judge Cameron allowed Poynter to make a mockery of the Court with his repeated obfuscations, obvious lies, deflections and feigned memory losses.
  3. That Judge Cameron turned a blind eye allowed the Crown Prosecutor Mr H Mallialieu to abuse the Court’s process by twice attempting to pervert the course of justice…… (SEE TRIAL TRANSCRIPT PAGE 5.. 5 through 25 and starts, “Now if I could take you back to August of 2011, and ends, A long time ago and they weren’t, they were just a, another occurrence. Another event.”……….by firstly, knowingly and willingly eliciting false testimony from a sworn witness (Stephen Poynter) and then again by contradicting that same witness’s true testimony with another attempt to nullify that testimony by again introducing the false notion that Poynter’s memory of what he did that day was either faulty or non existent.   It is clear from the Court record SEE HIS SWORN POLICE STATEMENT, A STATEMENT THAT THE CROWN WAS FULLY CONVERSANT WITH, that Poynter did remember what happened that day, the 23rd of August 2011. He stated that he’d rung the police and told them he was intending to home kill a pig, but Mr Mallialieu then attempted to further muddy the waters with a question very similar to his earlier one, “So you wouldn’t be able to tell us exactly what you were doing-“. This time he asked Poynter, “But you don’t specifically remember that date because -“, and he asked that leading question solely to get another no answer in order to mislead the Court into accepting the lie that Poynter suffers from a noticeable form of time induced memory loss and also to make sure that Poynter was fully aware that Judge Cameron wouldn’t censure him if he continued to feign memory loss when he didn’t want to answer awkward questions during cross-examination. From that time on whenever Poynter didn’t want to answer a question with a provable lie he feigned memory loss or said, “Police will have those records.”

 

22   I was woken from a deep sleep by a gunshot and then used the word annoy instead of provoke because of my sleepy and stressed condition. Judge Cameron pounced upon my use of the word annoy instead of provoke, which for all intents and purposes mean the same thing anyway  SHOW SYNONYMS in a clear display of bias. Page 6 of his Summing up. He ignored or twisted all my other submissions that made it crystal clear that I believed that Poynter was committing dangerous offences to provoke me, why else my repeated requests for a no fire zone or that the

Police pass on to me Poynter’s warnings to them that he was about to fire a gun? (Show Police “we never tell informant” Comms Printout.)

 

NEW INFORMATION, AFFIDAVIT SUPPLIED

 

  1. 23        My wife Sandra, who was sitting in the public gallery during the Jurie’s deliberations, told me on 2/7/13 that she saw Crown Prosecutor Lance Rowe standing by the Court door vigorously nodding to Judge Cameron after Mr Mallialieu had finished telling him that provocation could not be used as a defence in this matter. That, in anyone’s language, is surreptitious interference in and an abuse of the Court’s process.

       That Judge Cameron allowed PREVIOUSLY EXCLUDED    

       Prosecutor Lance Rowe to interfere in that way adds weight to

       my contention that in my case Judge David Cameron was at all

       relevant times biased in favour of the Crown. ………………………………………………………………………………………………………………………………………………………………………………………………………………………………

 

 (Show Application

       to exclude Rowe from the proceedings.)

 

NEW INFORMATION DUE TO LATE DISCOVERY?

 

  1. 24        Section 14 (1) of the Juries Act 1981 states that I, as an “eligible person”, was entitled to be provided for perusal a copy of the jury panel for up to seven days prior to the trial. When I asked Court staff to exercise that right I was refused. Initially I was told that as a layperson I was not allowed to see the list. On a subsequent visit to the Court office I again asked to see the list and I was told that I could see the list but only for a few minutes just before the jury was to be empanelled. Common sense told me that neither of the answers I was given was correct or fair so I attempted to file an Application to see the jury list within a sensible time frame. Yours truly,Jacobus Van Der LubbeWanganui 4500
  2.  
  3. 22A Paterson Street,
  4.  
  5. My attempt to file my Application was rudely rebuffed by Deputy Registrar Carol Brookie and when I quietly insisted that Ms Brookie file my Application she appealed to a security guard for assistance. The security guard saw no need to intervene and Ms Brookie then realised that her justice obstructing bluff to deny me my legal right file my Application to see the jury list in good time had failed. She then angrily stamped it and took my Application away. All but my first request to see the list of jury candidates occurred during and cut into the time that I was legally entitled to peruse the panel list. Judge Cameron’s decision that I could see the list almost at the last hour was not in accordance with Section 14 (1) of the Juries Act 1981 which states that eligible persons be given access to the list for up to seven days prior to the trial. See Cameron decision dated 11 March 2013

 

_____________________________________________________________________

 

CROWN REBUTTAL SUBMISSIONS

IN THE COURT OF APPEAL OF NEW ZEALAND CA305/2013

BETWEEN JACOBUS VAN DER LUBBE

Appellant

AND THE QUEEN

Respondent

RESPONDENT’S SUBMISSIONS ON APPEAL

26 August 2014

CROWN LAW

TE TARI TURF 0 TE KAITAUNA

  1. PC) Box 2858

WELLINGTON 6140

Tel: 04 472 1719

Fax: 04 473 3482

Contact Person:

M J Lillico

Email: marklillico@crownlaw.govt.nz

2

  1. Jacobus Van Der Lubbe was convicted after a jury trial in the Wanganui

District Court of one count of threatening to cause grievous bodily harm’ and

one of threatening to 1611.2

  1. Mr Van Der Lubbe now appeals against his convictions and sentence.
  2. Mr Van Der Lubbe was sentenced to pay a fine of $1,000 on each charge for a

total of $2,000.

Relevant background

  1. Mr Van Der Lubbe lives in Wanganui with his wife. Stephen Poynter lives

next door. The properties concerned are of a semi-rural nature.

  1. There was an ongoing dispute between the two neighbours with one of the

issues being the use of firearms by Mr Poynter. At one point, in an effort to

resolve the dispute, an arrangement was made whereby Mr Poynter would

indicate to the Police when he was about to use his firearms.

  1. The Crown case was that on 3 August 2011 Mr Poynter rang the Police and

told them that he was going to use a firearm on his property. Mr Van Der

Lube was not advised. After Mr Poynter used his rifle Mr Van Der Lubbe

made a 111 call reporting the shots and telling the Police that someone was

shooting a gun to annoy him. The Communication Centre advised that Mr

Poynter had told Police of his intentions. At that point, Mr Van Der Lubbe,

the Crown alleged, became irate and told the communicator “…I am going to

carry out my threat now, I am going to buy my own firearm and I am going to

use it to disable my neighbour”.3

  1. About three weeks later, on 23 August 2011, Mr Poynter advised the Police

that he was going to use his firearm on his property again. He did so but again

the information was not passed on to Mr Van Der Lubbe and at about 2.40pm

he made a 111 call advising the Police that he had heard a gunshot from his

neighbours. Mr Van Der Lubbe was advised by Police to stay inside while the

Police investigated. Mr Van Der Lubbe was telephoned by the Police a short

Contrary to the Crimes Act 1961 s 106(1)(a)

2 Contrary to Crimes Act 1961 s 306(1)(a)

3 COA p 21A

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3

time later and a message was left on his answerphone advising that Mr Poynter

had contacted the Police warning that he would be killing a pig. Mr Van Der

Lubbe returned the call wanting to speak to the person he had spoken to

before. He became irritated and annoyed with the Police communications

operator. He swore at him and said “You’re just fucking useless, I’m going to

buy my own gun, I am going to kill that cunt”.4

  1. At trial Mr Van Der Lubbe essentially relied on provocation and self-defence.

He admitted the telephone calls themselves.’

  1. Mr Van Der Lubbe gave evidence. He explained that by making the telephone

calls he was laying a paper trail and that he wanted to be arrested so that he

could tell his story in Court and the gun shots could be stopped permanently!”

  1. The learned District Court Judge, Judge Cameron, directed the jury that the

evidence given in the case was not sufficient to give rise to the possibility of

self-defence. In doing so the Judge pointed out that none of Mr Van Der

Lubbe’s responses on 3 or 23 August could be said to be reasonable defensive

responses to the situation Mr Van Der Lubbe believed existed at the time.’ The

Judge illustrated the point by indicating that on 3 August 2001 Mr Van Der

Lubbe told the Police Communications Centre that someone was shooting a

gun to annoy him.’ Annoyance could not possibly justify, on any objective

basis, a response by Mr Van Der Lubbe of a threat to disable the person

concerned.9

  1. In relation to provocation, the Judge directed the jury that provocation is not a

defence to the charges Mr Van Der Lubbe faced but if accepted could and

would be taken into account in imposing sentence should he be found guilty:0

4 COA p 23A

5 COA p 107 33-34 and p 108 lines 1-4

6 COA page 111

7 COA page 168

Ibid

9 Ibid

to COA page 169

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4

Appeal jurisdiction

  1. Mr Van Der Lubbe’s prosecution was commenced by way of informations

filed on 29 February 2012 prior to the commencement of the second stage of

the Criminal Procedure Act 2011 on 1 July 2013. The appeal therefore is to be

determined under part 13 of the Crimes Act 1961.11

Suppression orders

  1. The Crown are not aware of any suppression orders in this matter.

Appellant’s warning status

  1. The appellant, Mr Van Der Lubbe, has no strikes recorded against him.

The appeal

  1. The argument on appeal is essentially that the learned District Court Judge was

biased against Mr Van Der Lubbe and that accordingly there was a miscarriage

of justice. The sentence is said to be excessive in that the Judge did not take

into account the provocation Mr Van Der Lubbe alleged he had been

subjected to.

Bias

  1. The Crown submits that the way in which the learned District Court Judge

conducted the trial would not create a reasonable apprehension about his

impartiality for any fair minded observer.12 Trial judges benefit from a

presumption of integrity which in turn encompasses the notion of impartiality.

The onus is therefore on the person alleging bias to present coherent

evidence.’

  1. Mr Van Der Lubbe essentially relies on the Court record to make out the

grounds of his appeal. It is submitted that Mr Van Der Lubbe has not

discharged the onus on him to present cogent evidence of bias.

  1. Rather, the picture which emerges from the case on appeal and notes of

evidence is that the Judge had to make a sequence of rulings against Mr Van

Der Lubbe because:

11 Criminal Procedure Acts 397

12 Siemer v Solicitor’-Genera/ [20101 NZSC 12 at [6]

13 R v Teske.), 2006 SCC:25 at 1191 to [211

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5

18.1 Mr Van Der Lubbe sought to introduce extensive background to the

dispute with his neighbour as evidence when it was unrelated to any

available defence or matter in dispute. The rulings were against Mr

Van Der Lubbe because his position had no legal basis; and

18.2 Mr Van Der Lubbe was self-represented. Many of the interventions

and rulings made by the Judge were necessary because Mr Van Der

Lubbe chose to represent himself before the Court in a jury trial. The

Judge was entitled to intervene to maintain control of the Court room

he had an implied power to do what was necessary in the exercise

of his trial function.”

  1. Mr Van Der Lubbe’s specific concerns can be considered as follows:

Reasonable dineframe to prepare defence

19.1 Mr Van Der Lubbe asserts that he had inadequate time to prepare his

defence and that the Judge had “an arrogant and dismissive

demeanour”.15 The onus on Mr Van Der Lubbe to present cogent

evidence is not discharged here and there is nothing in the record

before this Court to support the assertion. In any event, it seems that

the early trial date was later vacated.I6

Witnesses

19.2 The implication of Mr Van Der Lubbe’s submission on this point” is

that the Judge wrongly enquired into the names of Mr Van Der

Lubbe’s witnesses. The innuendo is that the attendance of the

witnesses was then discouraged (presumably by the Crown).18

19.3 Again, there is no cogent evidence for this and there is no reflection

in the record of this exchange. In setting the trial date the Judge may

well have sought the number or names of witnesses and may or may

not have advised Mr Van Der Lubbe that he was not required to

notify the Court if he did not want to.

‘4 See, for example, R uKelekolio [2014] NZHC 1275 at 1171

15 Appellant’s submission page 1 at [2]

16 Appellant’s submissions page 2 at [4]

17 Appellant’s submissions page 2 at [5]

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6

19.4 The suggestion that the Crown then went on to discourage the

attendance of the witnesses or encouraged one of them to ‘change his

story’19 is a very serious allegation and completely without evidential

foundation.

19.5 In any event, it does not seem that any arrest warrants were sought by

Mr Van Der Lubbe when his witnesses did not attend. The

prosecutor’s note of the trial shows that at 3.10pm (on 12 March

2013) Mr Steele’s evidence concluded and that there were “3 other

witnesses.”‘ The note then states “none show up”.21 The note goes

on to say that at 3.12pm “Defence case ends” 22 No application for a

warrant to bring the absent witnesses to Court or for an adjournment

is noted as having been made. In the case on appeal it is simply noted

that the final defence witness, Mr Steele, was excused23 and the

defence case was concluded. There were no applications for warrants

or adjournments at that point.

Advice to obtain legal representation/appointment of amicus curiae

19.6 It is alleged that the Judge’s failure to suggest that Mr Van Der Lubbe

obtain legal advice or representation and his failure to appoint an

amicus curiae indicates bias. It is difficult to understand how such

failure would create a reasonable apprehension about the Judge’s

impartiality for a fair minded observer given that Mr Van Der Lubbe

already knew that he had this right24 and apparently did not want to

instruct counsel. This can be seen in that Mr Van Der Lubbe acted

for himself throughout the proceedings including:

19.6.1 A related private prosecution by Mr Van Der Lubbe of

Andrew McDonald (a Police Officer at Wanganui);25

‘8 Appellant’s submissions page 2 at 15]

19 Appellant’s submissions p2 at [5J

20 Excerpt From prosecutor’s note attached

21 Ibid

22 Ibid

23 COA page 124

24 COA page 53A at 142]

25 COA page 24A

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7

19.6.2 An application by the Crown in respect of admission of

hearsay evidence;26

19.6.3 An application by the Crown to have witness summonses set

aside;27

19.6.4 An application by Mr Van Der Lubbe to have the Wanganui

Crown Solicitor, Lance Rowe, and prosecutor, Harry

Mallalieu, stand aside from acting as prosecutors at tria128 as

well as an application by Mr Van Der Lubbe to have

admitted into evidence a 111 call and various other

documents. 29

19.7 The Judge’s failure to appoint an amicus is also no indicator of bias

given that that is the orthodox position. The appointment of an

amicus in criminal cases should be rare.3° Where a defendant

indicates that he or she wishes to represent him or herself the Court

should ensure that he or she is aware of the right to counsel and of

the availability of legal aid.3’ The defendant should be afforded an

adequate opportunity to consider whether to take advantage of those

rights and to exercise them if that is what he or she wants. However,

defendants have the right to present their defences personally and that

is confirmed by section 354 of the Crimes Act 1961 and section 11 of

the Criminal Procedure Act 2011.32 If having been appropriately

advised and given sufficient time a defendant choses to self-represent,

the choice must be respected and the defendant must live with the

consequences.33 There was no amicus in the present case but that was

entirely appropriate in the light of these principles and does not

signify bias.

26 COA page 43A

27 COA page 44A

28 COA page 54A

29 COA page 55A

30 R P McFarland [2007] NZCA 449 at [53]

t Ibid

32 Ibid

33 Ibid at [54]

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8

Conduct

19.8 Mr Van Der Lubbe points to the Judge’s indication that he expected

him to conduct himself “with proper decorum throughout this trial”3`

as a further indicator of bias. The Court has inherent power to

control conduct in the Court room and evidentially the Judge felt it

was necessary to give this warning. The transcript of the preliminary

part of the trial on 11 March 2013 is not available but there are

exchanges in the transcript at later points of the trial where Mr Van

Der Lubbe appears to be arguing with the Judge. The Judge was

entitled to try to control this. An example of this is at page 134 of the

case on appeal where there appear to be interruptions of the Judge by

Mr Van Der Lubbe noted in the square brackets. The same approach

was taken by Mr Van Der Lubbe in the course of giving his evidence.

An example is in the case on appeal at page 94 where the Judge rules

against allowing Mr Van Der Lubbe to show photographs to the jury

and asks him to move on to his next point.’ Mr Van Der Lubbe

retorts “so they would be grounds for appeal?”36 and goes on to say

“I think I am getting a raw deal here but I will carry on.”37 Mr Van

Der Lubbe’s conduct as a lay litigant in a jury trial was a legitimate

concern for the Judge.

Defibrillator

19.9 Mr Van Der Lubbe points to an exchange with the Judge about a

defibrillator as another indicator of bias. Again, there is no evidence

that this exchange happened in the manner alleged.

Photographs displayed on television

19.10 It appears that Mr Van Der Lubbe had not brought ‘hard copy’

versions of the photographs that he wished to refer to. Mr Van Der

Lubbe intended to use the photographs to illustrate an incident on

3 September 2011 where Mr Poynter carried out a home kill with a

rifle at the back of his property and within the Wanganui City

COA page 61A at (91

35 COA page 94 at line 18

36 Thiel at line 19

37 COA page 94 line 21

2692928 1

 

9

boundary. The photographs were of that boundary. Given that the

photographs related to an irrelevant matter the Judge’s refusal to have

them put before the jury was an orthodox response and not a product

of bias.

Previous ruling ofJudge McElrea

19.11 Mr Van Der Lubbe also sees bias in Judge Cameron’s apparent

overruling of Judge McElrea’s earlier decision that “the accused must

be allowed to show the truth of some key parts of this ‘pattern’ if he

wishes to — although it would be counterproductive — in order to

persuade the jury that he actually held that view — that it, that it is part

of the circumstances as he believed them to be.”38 Again, the Judge’s

response to this previous ruling is perfectly orthodox and cannot have

created a reasonable apprehension about his impartiality for a fair

minded observer. This is because:

19.11.1 Judge McElrea heard an application by the Crown to set

aside witness summonses not the admissibility of evidence in

support of self-defence;

19.11.2 One District Court Judge cannot bind another;

19.11.3 Judge McElrea explicitly noted that he had heard no

evidence and had made no findings on facts relating to the

self-defence argument;39

19.11.4 Judge Cameron had charge of the trial and was responsible

for the fairness of that trial. As it was, he decided that there

was no basis for a self defence argument and ruled

accordingly.°

19.12 This did not, however, mean that Mr Van Der Lubbe was not

permitted to give any evidence of previous matters and the Judge did

38 COA page 50A at [31]

39 COA page 47A at [13]

40 COA page 134

2692928 J

 

10

indulge Mr Van Der Lubbe to an extent in his evidence in chief where

Mr Van Der Lubbe gives evidence of:

19.12.4 Mr Poynter’s shooting of four of Mr Van Der Lubbe’s deer

that had escaped their enclosure;41

19.12.5 Being shot at by Mr Poytner and calling 111 on his cell

phone as he lay flat on the ground;42

19.12.6 His belief that Mr Poynter shot his cat.43

Interruption during play back of 111 call

19.13 This is presented by Mr Van Der Lubbe” as a denial by the Judge of

an opportunity to represent himself properly. A fair reading of the

transcript does not disclose any such unfair judicial interference. The

111 call is played at 12.45pre with Mr Van Der Lubbe asking the

Court whether it could hear the sound of a suppressed .22. The

Judge replied “let us just hear the whole thing and then you can

comment”.” The audio then ends at 12.50pm47 and the Judge invites

Mr Van Der Lubbe to comment at that point by saying “alright Mr

Van Der Lubber° There is then an extended and uninterrupted

passage of transcipt where Mr Van Der Lubbe comments on the

incident leading to the call for the rest of page 99 of the case on

appeal up to the beginning of page 100. This was an opportunity to

make a comment about the sound of a .22 had Mr Van Der Lubbe

wished.

Refusal to allow Mr Van Der Lubbe to show the jury Police and Court

documents

19.14 Again, this is no indication to a fair minded observer of bias. The

documents apparently related to an allegation by Mr Poynter that Mr

41 COA page 94 lines 23 to 25

42 COA page 98 lines 10 to 19

43 COA page 101 lines 22 to 28 and page 102 lines 1 to 4

Appellant’s submissions at page 8 112]

45 COA page 99 line 5

46 Ibid at line 9

47 Ibid at line 10

Ibid at line 13

2692928_1

 

11

Van Der Lubbe had stolen two of his cattle two years’ prior to the

offending at issue in the trial in 23 June 2009. While the Judge

allowed Mr Van Der Lubbe to give some evidence of this in chief’) he

did not allow him to elaborate through production of papenvork.5°

Given the irrelevance of the material he was not wrong to do so and

so the ruling is symptomatic of the extra-legal approach of the selfrepresented

Mr Van Der Lubbe rather than any bias on the part of

the Judge.

Shortening of the trial unfairly

19.15 Again, there is no evidence in relation to this matter and Mr Van Der

Lubbe has not pointed to any part of the record which discharges his

onus to present cogent evidence of bias. In any event, the close of

the defence case is detailed at paragraph 19.5 above. Arrest warrants

were not sought for the witnesses and no adjournment was sought

either. The record shows that the trial came to a close because Mr

Van Der Lubbe had called the witnesses he wanted to and there is no

indication that he was prejudiced by any concerns about time on the

part of the Judge.

Evidence that the cat had been shot

19.16 Whether or not Mr Poynter had shot Mr Van Der Lubbe’s cat in

20105′ did not give rise to a defence for threatening to kill/commit

grievous bodily harm in 2011.

Improper Crown behaviour

19.17 A further aspect of the bias alleged against the Judge was his failure to

intervene in relation to alleged misconduct by the prosecutor.52 There

was no need for the Judge to intervene at this point because there was

no misconduct. There was nothing improper in the prosecutor asking

an open question at page 5 line 9 of the case on appeal when leading

the evidence of the complainant, Mr Poynter. Mr Mallalieu asked an

open question “do you recall particular use of your firearm on that

49 COA page 91 line 25 to 30

5° COA page 91 line 30 to 35

51 COA page 101 lines 22 to 29

2692928_1

 

12

day?” in referring to 3 August 2011 (the date of the offending alleged

in count 1 of the indictment).53 Mr Poynter’s response was that he

could not recall that particular day.54 Mr Poynter gave evidence on

eradicating pests such as deer and goats on his property with a

firearm,55 on how frequently he would shoot on his property56 and so

forth. The use of firearms that was a feature of the neighbour’s

dispute was therefore squarely in front of the jury. If the evidence

lacked specificity for Mr Van Der Lubbe it was open to him to crossexamine

Mr Poynter on his previous statements.

Sentence

  1. The fines imposed by the learned District Court Judge were well within range.
  2. There is no tariff for threatening to kill or cause grievous bodily harm.
  3. In Faakaga v R57 this Court said:

It is difficult to discern any consistent pattern in sentences on charges

of threatening to kill. R v Forrest is at the more serious end of the

range. A sentence of three and a half years imprisonment was upheld

on appeal. However, the circumstances were far more serious than

the present case and involved three charges of demanding money

with menaces and four of threatening to kill made while the appellant

was in prison. At the other end of the range, non-custodial sentences

have been imposed in some cases.

  1. The Judge, in his summing up, said “if accepted” provocation would have to

be taken into account in imposing any penalty. There is no mention of the

issue of provocation as a mitigating factor in the Judge’s sentencing. The

Judge heard the evidence and may have decided that there was no provocation.

Perhaps he decided that hearing shooting in a semi rural area was not

something that could amount to provocation. Whatever the case, while it is

important to look at the construction of sentencing it is the end result that

counts .58

52 COA page 10 at [201

53 COA page 19A

COA page 5 line 10 to 11

55 COA page 3 lines 10 to 23

56 COA page 6 lines 7 to 13

57 29 September 2011, CA306/11 at [9]

58 p R [2013] NZCA 514 at [18]

2692928_1

 

13

  1. Mr Van Der Lubbe was charged with two offences that carried seven years’

imprisonment as a maximum and had a presentence report recommending

home detention (ie, effectively prison).” While admittedly this

recommendation was well-wide of the mark it does emphasise the seriousness

of the offending. It was deliberate and pre-meditated and Mr Van Der Lubbe

was thought to pose a “significant risk” because of the justifications put

forward for his actions.6° In the end, the Judge imposed a fine which in the

hierarchy of sentences is one step up from the conviction and discharge that

Mr Van Der Lubbe himself was seeking.’

26 August 2014

/41 Alico

Counsel for the respondent

TO: The Registrar of the Court of Appeal of New Zealand.

AND TO: The appellant.

59 COA page 179

69 COA p 177

MY SUBMISSIONS TO THE COURT OF APPEAL

Tuesday, 9 September 2014

I stand by everything I said in my grounds and submissions for appeal and wish to add the following rebuttal to the Crown’s rebuttal.

 

But first I ask the Court’s permission to correct an incomplete sentence in my submissions in support of my Appeal. On page 11 at the end of paragraph 1 where it concludes, “From that time on whenever Poynter didn’t want to answer a question with a provable lie.”

The sentence should continue and conclude with the words, he feigned memory loss.

 

 

There are a number of assertions in the Crown’s rebuttal of my submissions that need commenting on or correcting.

 

If I may?

 

 

PAGE 2

 

 

Relevant background

 

  1. Mr Van Der Lubbe lives in Wanganui with his wife. Stephen Poynter lives

next door. The properties concerned are of a semi-rural nature.

 

 

This “semi-rural” description is misleading as the properties are both bisected by the Whanganui City boundary, two of the four residences belonging to the two parties are within the city boundary and there are no less than 28 residential properties with a radius of 200 meters of my home which is just outside the city boundary and Poynter’s is 90 meters from my home. Residential with a rural aspect would be a much better description, and semi-rural only if you ignore all the nearby houses. There have been numerous 111 calls to the Police in relation to loud gunfire by Stephen Poynter’s near and not so near neighbours other than me. Show photo if needed.

 

The Police established early on that the discharge of high-powered firearms in the residential/built-up area of  the Paterson Street,  Roberts Ave area was unlawful. SEE Jill PETTIS/ Duncan McLeod letters.

 

Now before I go further I wish to know why the Crown has changed the wording and meaning of a sentence in Judge McElrae’s ruling of  22 August 2012? SEE The Judges RULING 11A 31 (seven lines down) in the bundle and the Crown’s submissions page 9 19.11 (4 lines down)The Crown has substituted the word could with would and thereby changed the meaning of that sentence.

 

 

  1. There was an ongoing dispute between the two neighbours with one of the

issues being the use of firearms by Mr Poynter. At one point, in an effort to

resolve the dispute, an arrangement was made whereby Mr Poynter would

indicate to the Police when he was about to use his firearms.

 

  1. The Crown case was that on 3 August 2011 Mr Poynter rang the Police and

told them that he was going to use a firearm on his property. Mr Van Der

Lube was not advised. After Mr Poynter used his rifle Mr Van Der Lubbe

made a 111 call reporting the shots and telling the Police that someone was

shooting a gun to annoy him. The Communication Centre advised that Mr

Poynter had told Police of his intentions. At that point, Mr Van Der Lubbe,

the Crown alleged, became irate and told the communicator “…I am going to

carry out my threat now, I am going to buy my own firearm and I am going to

use it to disable my neighbour”.3

 

Poynter advised Police that he would be using his low-powered and suppressed 22 rifle to shoot (“retire”) pests and do home-kills. He then proceeded to use his high-powered 243 rifle to shoot four of my deer. As usual the Police did not warn me of the impending gunfire. At trial and under oath Poynter repeated the lie that he had used his suppressed 22 that night. The Police 111 recording proved that Poynter had lied to the Court but Judge Cameron simply ignored that fact.   Pages 84 and 85 of the Trial transcript (5 to 30 and then over the page until the Crown interrupts again.) where Sergeant Jones tries and fails to back up Poynter’s perjury about which caliber guns he used to kill the deer. Notice how the Crown prosecutor objected at that crucial point (page 85) and it was me that Judge Cameron frowned upon and told to move on with my questioning.

But when I pressed the point that it was clear that the Sergeant wasn’t being entirely honest Judge Cameron washed his hands of the possible perjury by saying “Once again it is not for me to say that.” Judge Cameron was again allowing a Crown witnesses to make a mockery of the Court.

 

AND in 20 of page 85 of the transcript I indicate again that my very short term memory is faulty and if I had written it down as Judge Cameron suggested I probably would have forgotten doing that too. That obvious perjury (the lying about the use of his 22 when the police 111 recording proved otherwise) and the failure of the Police to pull Poynter up for his obvious false written statements, and the possible perjury (The Sergeant claiming that Poynter didn’t tell him what rifle he intended to fire.) is left for the accused and or the jury to action That can’t be a correct or a fair way to run a trial?

 

 

  1. About three weeks later, on 23 August 2011, Mr Poynter advised the Police

that he was going to use his firearm on his property again. He did so but again

the information was not passed on to Mr Van Der Lubbe and at about 2.40pm

he made a 111 call advising the Police that he had heard a gunshot from his

neighbours. Mr Van Der Lubbe was advised by Police to stay inside while the

Police investigated. Mr Van Der Lubbe was telephoned by the Police a short

 

 

PAGE 3

 

time later and a message was left on his answerphone advising that Mr Poynter

had contacted the Police warning that he would be killing a pig. Mr Van Der

Lubbe returned the call wanting to speak to the person he had spoken to

before. He became irritated and annoyed with the Police communications

operator. He swore at him and said “You’re just fucking useless, I’m going to

buy my own gun, I am going to kill that cunt”.4

 

Again Poynter advised Police that he would be using his low-powered and suppressed 22 to kill a pig. He then proceeded to use his unsupressed high-powered 243 rifle to shoot the pig. As usual the Police did not warn me of the impending gunfire. At trial and under oath Poynter again repeated the lie that he had used his 22 to shoot the pig.

TRIAL Page 9  [5/10] [25/30] and page 10 [5]

 

  1. At trial Mr Van Der Lubbe essentially relied on provocation and self-defence.

He admitted the telephone calls themselves.’

 

  1. Mr Van Der Lubbe gave evidence. He explained that by making the telephone

calls he was laying a paper trail and that he wanted to be arrested so that he

could tell his story in Court and the gun shots could be stopped permanently!”

 

The Crown has stated that the Police were warned by Stephen Poynter on both shooting occasions that he was about to fire his suppressed 22 rifle and that the Police failed to pass on the warnings to me. (As I said above, Poynter actually fired his high-powered rifle on both occasions and then lied to the Police and the Court about it.)

This failure to pass on Poynter’s warnings to me, was and still is, a deliberate police policy designed to encourage me to break the Queens peace. You may think that’s crazy talk but there is no reasonable explanation for the withholding of warnings from me other than it was done as a deliberate ploy in the hope that I might retaliate in some unlawful fashion. See where it says, The Police document number 188 in the bundle proves that there is a formal Police policy to withhold Poynter’s warnings from me. SHOW COMMS RECORD, LAST PAGE.

 

And the entry “WE WILL WAIT AND SEE IF ANY OTHER PROBLEMS ARISE.”

shows that the Police were waiting and hoping for unlawful developments to occur.

 

Well they got what they waited four plus years for, in the end it was a bit tame but something was better than nothing. My plan to lessen the gunfire danger to my family was successful however so that was one excellent outcome. SEE MY LETTER TO JUDGE CAMERON 183 in the bundle. Unfortunately I was prevented from telling my full “story” to the jury by Judge Cameron, a story that I am sure would have proved that I had acted only in self-defence and only after a prolonged period of dangerous provocations. Had the Police passed on the warnings to me or better still, acted to prevent the unannounced discharge of high-powered firearms very near to my home and a residential area I would not be here today.

 

 

  1. The learned District Court Judge, Judge Cameron, directed the jury that the

evidence given in the case was not sufficient to give rise to the possibility of

self-defence. In doing so the Judge pointed out that none of Mr Van Der

Lubbe’s responses on 3 or 23 August could be said to be reasonable defensive

responses to the situation Mr Van Der Lubbe believed existed at the time.’ The

Judge illustrated the point by indicating that on 3 August 2001 Mr Van Der

Lubbe told the Police Communications Center that someone was shooting a

gun to annoy him.’ Annoyance could not possibly justify, on any objective

basis, a response by Mr Van Der Lubbe of a threat to disable the person

concerned.9

 

When taken in isolation the two firearms incidents may not appear to give sufficient rise to the possibility of a self-defense response but add them to it the heap of evidence that those two incidents were only the culmination of a four plus years campaign of intimidation and harassment, all condoned by the complicit Wanganui Police there is more than enough justification for one or more acts of reasonable self-defense.  THE POLICE COMMS ENTRY “not any of his business” etc (Document 188 in the bundle) is but one of the many proofs that the Wanganui Police were complicit in Poynter’s harrasment campaign. The cover-up of the cat shooting and dangerous shooting incident and the alleged cattle theft are examples of that complicity. In the latter incident the Sergeant who obtained the search warrant did so under false pretences. He swore out an application for a search warrant knowing that a crucial detail in it was false. He falsely swore that I was the designated owner of 22A Paterson Street when he had already established at the Wanganui City Council Offices that my wife is the designated owner of 22A Patterson St.

 

  1. In relation to provocation, the Judge directed the jury that provocation is not a

defence to the charges Mr Van Der Lubbe faced but if accepted could and

would be taken into account in imposing sentence should he be found guilty:0

 

 

If provocation was not a defense to the charges why was Judge McElrae so emphatic in the wording of his ruling of 24 August 2012 that I must be allowed to present evidence showing that my family had been the victims of a three decades long period of discrimination and provocation at the hands of the Police and their criminal accomplices, such as the so called “victim” Stephen Poynter. See Judge McElrae’s ruling. 11A [31] of the bundle.

 

I believe Judge Cameron was wrong to overrule Judge McElrae and rule out provocation as a defense to the charges and his assertion that my use of the word annoy rather than provoke in my phone conversation with Police on the night of 3 August 2011 was proof that I was not feeling provoked shows that he was actually unsure if provocation was a defense to the charges or not. Where would Judge Cameron have been had I used the word provoke rather than “annoy” on the night that Poynter woke me up from my sleep with high-powered gunfire? Annoy and provoke mean the same thing anyway so Judge Cameron was wrong on all counts.

 

Crown has chosen to parrot Judge Cameron here MIDDLE of PAGE 168 of the bundle by saying that my use of the word annoy instead of provoke is proof that I wasn’t genuine when I claimed that I felt threatened or provoked by Stephen Poynter’s unannounced gunfire. That of course is total hogwash. From day one in 2006 I pleaded with the Police to stop Poynter from firing his “cannons” near me, I even approached the local MP Jill Pettis for help and repeatedly asked the police to establish a no fire zone along the common boundary. SHOW Jill PETTIS LETTERS AGAIN This evidence of my concern was dismissed by Judge Cameron as hearsay, irrelevant and inadmissible without him even looking at it.

It was abundantly clear to all who actually bothered to look that I was very worried about the danger that the unannounced gunfire posed, so much so that I believe the prolonged stress of it all ultimately lead to my heart attack. The Jury questions made it abundantly clear that they wanted to acquit me on the grounds of self-defence, provocation and or intent but Judge Cameron misdirected them on the blatantly false grounds that provocation was not a defence, that self-defence was also not a defence in this matter and that therefore my intent must have been criminal.

 

PROVOCATION PAGE 169 11

 

 

PAGE 4

 

Appeal jurisdiction

 

  1. Mr Van Der Lubbe’s prosecution was commenced by way of informations

filed on 29 February 2012 prior to the commencement of the second stage of

the Criminal Procedure Act 2011 on 1 July 2013. The appeal therefore is to be

determined under part 13 of the Crimes Act 1961.11

 

Suppression orders

 

  1. The Crown are not aware of any suppression orders in this matter.

 

Appellant’s warning status

 

  1. The appellant, Mr Van Der Lubbe, has no strikes recorded against him.

 

The appeal

 

  1. The argument on appeal is essentially that the learned District Court Judge was

biased against Mr Van Der Lubbe and that accordingly there was a miscarriage

of justice. The sentence is said to be excessive in that the Judge did not take

into account the provocation Mr Van Der Lubbe alleged he had been

subjected to.

 

The argument on appeal is about judicial bias but it is also about how Judge Cameron suppressed large portions of my police misconduct evidence and misdirected the Jury about self-defense, provocation and intent. And to use the word “alleged” when talking about Stephen Poynter’s years long provocation and harassment campaign is a lot like the Crown changing the wording in Judge McElrae’s ruling in an attempt to mislead this Court.

 

Bias

 

  1. The Crown submits that the way in which the learned District Court Judge

conducted the trial would not create a reasonable apprehension about his

impartiality for any fair minded observer.12 Trial judges benefit from a

presumption of integrity which in turn encompasses the notion of impartiality.

The onus is therefore on the person alleging bias to present coherent

evidence.’

 

There is ample evidence that Judge Cameron was openly biased against me from day one. I should have applied to have him stand down from the case there and then but I guess I was already feeling a bit intimidated. It took an Application to the High Court to convince Judge Cameron that his decision to deny me sufficient time to prepare my defence was indefencible and so he vacated the early trial date but he gave me no reason for having done so. I now realise that at that time I inadvertantly made the mistake of informing the Judge what my defence stratergy was going to be. SEE Deputy Registrar V L Manning DATED 20 July 2012 AND ALSO SEE HIGH COURT APPLICATION DATED 30 July 2012.

 

  1. Mr Van Der Lubbe essentially relies on the Court record to make out the

grounds of his appeal. It is submitted that Mr Van Der Lubbe has not

discharged the onus on him to present cogent evidence of bias.

 

 

 

  1. Rather, the picture which emerges from the case on appeal and notes of

evidence is that the Judge had to make a sequence of rulings against Mr Van

Der Lubbe because:

 

That’s claptrap and he knows it.

 

PAGE 5

 

 

 

18.1 Mr Van Der Lubbe sought to introduce extensive background to the

dispute with his neighbour as evidence when it was unrelated to any

available defence or matter in dispute. The rulings were against Mr

Van Der Lubbe because his position had no legal basis; and

 

Judge McElrae stated very firmly in [31] of his ruling of 24 August 2012 that I must be permitted to try and prove the decades long pattern of Police malfeasance against my family which led directly to me having to take the self-defence actions that I did on the days in question. The evidence that I was prevented from presenting to the Court was directly related to the available defense of self-defence and Judge Cameron’s attitude towards me was encapsulated in his use of the word “venting” to describe my wish to defend myself by demonstrating the exisistance of a decades long pattern of Police misconduct. I thought that this “venting” business was in the Trial transcript but I was mistaken. Proof that the exchange took place is in a separate “Ruling” dated 12 March 2013. The word “venting” is on page one, and page 2 reveals that I asked for and was refused a mistrial on the grounds that I wasn’t getting a fair trial, and the last sentence reveals that because of Judge Cameron’s unfair overruling of Judge McElrae my defense was thrown into disarray. “I’ve got no idea where to start.” This is the point where my defence case was irreparably damaged by Judge Cameron overruling of Judge McElrae’s earlier ruling upon which I based my self-defense case. Again on page 10 of his 24 August 2012 [41] and [42] ruling, (that’s 12A of the bundle) Judge MCElrae made it absolutely clear that my self-defence case relied on me being allowed to present my “extensive evidence” of police malfeasance against my family. SEE JUDGE CAMERON’S RULING DATED 12 MARCH 2013 135 of the bundle at the bottom where I say, “I’ve got no idea where to start.”

 

And how on earth is an extensive background to the dispute with his neighbour Poynter not evidence and not related to any available defense or matter in dispute?

 

18.2 Mr Van Der Lubbe was self-represented. Many of the interventions

and rulings made by the Judge were necessary because Mr Van Der

Lubbe chose to represent himself before the Court in a jury trial. The

Judge was entitled to intervene to maintain control of the Court room

he had an implied power to do what was necessary in the exercise

of his trial function.”

 

Most of the interventions and rulings made by Judge Cameron were at the behest of the Crown Prosecutor who had his own dishonest agenda. The fact that I represented myself had no bearing on the frequency of the Crown’s interruptions to the Court’s process but it had everything to do with denying me a fair trial. One example being that the Crown and Judge Cameron let me paint myself into a very bad light before the Crown Prosecutor objected and Judge Cameron forbade me from adding further evidence that would have changed that picture altogether. If the Crown was genuine about keep things “relevant” then it would have interjected after I said 1987. SHOW TRANSCRIPT………….PAGE 96 [5] [10] of the bundle.

 

Please refer to page 2 of Judge JP Clapham’s Judgement for his opinion of some of the matters that Judge Cameron dismissed as “irrelevant” to my defence. SHOW JUDGE CLAPHAM’S JUDGEMENT. 26A [12] through to [15] of the bundle.

 

  1. Mr Van Der Lubbe’s specific concerns can be considered as follows:

 

Reasonable dineframe to prepare defence

 

19.1 Mr Van Der Lubbe asserts that he had inadequate time to prepare his

defence and that the Judge had “an arrogant and dismissive

demeanour”.15 The onus on Mr Van Der Lubbe to present cogent

evidence is not discharged here and there is nothing in the record

before this Court to support the assertion. In any event, it seems that

the early trial date was later vacated. I6

 

There is nothing in the Court record about Judge Cameron’s arrogant and dismissive

demeanor” because preliminary hearings are not recorded but my application to the High Court to overrule Judge Cameron’s oppressive early trial date and Judge Cameron’s unexplained and reluctant vacating of the early trial date is more than enough “cogent” evidence that my claim that Judge Cameron’s demeanor was not what an impartial adjudicator would display……………………..SHOW CAMERON”S REFUSAL TO VACATE THE EARLY TRIAL DATED 20 July 2012. THE MANNING LETTER

 

Witnesses

 

19.2 The implication of Mr Van Der Lubbe’s submission on this point” is

that the Judge wrongly enquired into the names of Mr Van Der

Lubbe’s witnesses. The innuendo is that the attendance of the

witnesses was then discouraged (presumably by the Crown).18

 

19.3 Again, there is no cogent evidence for this and there is no reflection

in the record of this exchange. In setting the trial date the Judge may

well have sought the number or names of witnesses and may or may

not have advised Mr Van Der Lubbe that he was not required to

notify the Court if he did not want to.

 

 

 

PAGE SIX

 

19.4 The suggestion that the Crown then went on to discourage the

attendance of the witnesses or encouraged one of them to ‘change his

story’19 is a very serious allegation and completely without evidential

foundation.

 

That I was asked for my witnesse’s names cannot be disputed by the Crown as preliminary hearings are not recorded. Judge Clapham stated in an earlier decision that I am “not a liar” so the “onus” is on the Crown to prove otherwise. It has to prove that the exchange did not happen as described. I have no doubt that seeking the number of potential witnesses is normal Court practice but asking for their names and writing them down has different connotations altogether. Names are only required if vetting or something else is being contemplated.  SHOW CLAPHAM’S WORDS NOT A LIAR PAGE 38A [53] of the bundle.

 

19.5 In any event, it does not seem that any arrest warrants were sought by

Mr Van Der Lubbe when his witnesses did not attend. The

prosecutor’s note of the trial shows that at 3.10pm (on 12 March

2013) Mr Steele’s evidence concluded and that there were “3 other

witnesses.”‘ The note then states “none show up”.

 

Judge Cameron didn’t mention to me that I could have asked for an adjournment or that my no-show witnesses could be arrested and brought to Court. I imagine that an Amicus would have reminded Judge Cameron of my right to call for an adjournment.

 

When I went to file my duplicate witness summonses, (I had served the originals myself) the Court counter staff person said, “What am I supposed to do with these?” I replied that I wanted them stamped and added to the file. She then made an exaggerated display of stamping the summonses and walked off without further conversation. Can you imagine Judge Cameron stopping the trial so that my missing witness could be arrested and dragged into Court? Anyway, I didn’t know that that could have been done and Judge Cameron did not alert me to the possibility.

 

21 The note goes

on to say that at 3.12pm “Defence case ends”

 

22 No application for a warrant to bring the absent witnesses to Court or for an adjournment is noted as having been made. In the case on appeal it is simply noted

that the final defence witness, Mr Steele, was excused

23 and the defence case was concluded. There were no applications for warrants

or adjournments at that point.

 

I’ve already covered that point.

 

And my summonsed witnessBruce Steel was excused after I told Judge Cameron that he had changed his story from what he had told me earlier.

 

 

Advice to obtain legal representation/appointment of amicus curiae

19.6 It is alleged that the Judge’s failure to suggest that Mr Van Der Lubbe

obtain legal advice or representation and his failure to appoint an

amicus curiae indicates bias. It is difficult to understand how such

failure would create a reasonable apprehension about the Judge’s

impartiality for a fair minded observer given that Mr Van Der Lubbe

already knew that he had this right24 and apparently did not want to

instruct counsel. This can be seen in that Mr Van Der Lubbe acted

for himself throughout the proceedings including:

 

19.6.1 A related private prosecution by Mr Van Der Lubbe of

Andrew McDonald (a Police Officer at Wanganui);25

 

Judge Cameron surmised that I intended to represent myself at trial and I was not aware that I could have ask for an Amicus Curea prior to reading this newspaper article. But the Crown is missing the point again; the other Judges involved in this and other matters advised me to obtain legal advise or counsel but never Judge Cameron, and it is my submission that this failure to advise me that help was available lends weight to my claim of bias. Judge Cameron would not have been able to run roughshod over my legal rights if I had employed a good lawyer or an Amicus Curae had been appointed to aid the Court’s process of that I am sure. Unfortunately I was ignorant of the possibility of an Amicus and Legal Aid is only a grant for the destitute.

 

 

PAGE 7

 

19.6.2 An application by the Crown in respect of admission of

hearsay evidence;26

 

19.6.3 An application by the Crown to have witness summonses set

aside;27

 

19.6.4 An application by Mr Van Der Lubbe to have the Wanganui

Crown Solicitor, Lance Rowe, and prosecutor, Harry

Mallalieu, stand aside from acting as prosecutors at tria1

28 as

well as an application by Mr Van Der Lubbe to have

admitted into evidence a 111 call and various other

documents. 29

 

Correct me if I’m wrong but the Crown doesn’t seem to have addressed the matter of my Application to have certain documents admitted into evidence. 55A [5] of the bundle When Judge Cameron ruled on the Application he postponed deciding on it until the trial but when the time arrived for me to produce the documents he simply ruled them irrelevant. It is my belief that Judge Cameron delayed ruling on my “various applications earlier was because of the way I reacted to his dismissal of my application to vacate the early trial date. He didn’t want me taking the applications to the High Court so instead of ruling on the applications there and then and running the risk of the High Court overturning them he postponed them knowing all the time that he was going to deny some or all of them during the trial. PAGE 94 [10] [15] [20] in the bundle

 

SHOW APPLICATION

 

19.7 The Judge’s failure to appoint an amicus is also no indicator of bias

given that that is the orthodox position. The appointment of an

amicus in criminal cases should be rare.3° Where a defendant

indicates that he or she wishes to represent him or herself the Court

should ensure that he or she is aware of the right to counsel and of

the availability of legal aid.3′ The defendant should be afforded an

adequate opportunity to consider whether to take advantage of those

rights and to exercise them if that is what he or she wants. However,

defendants have the right to present their defences personally and that

is confirmed by section 354 of the Crimes Act 1961 and section 11 of

the Criminal Procedure Act 2011.32 If having been appropriately

advised and given sufficient time a defendant choses to self-represent,

the choice must be respected and the defendant must live with the

consequences.33 There was no amicus in the present case but that was

entirely appropriate in the light of these principles and does not

signify bias.

 

Well he newspaper article proves that wrong.

 

PAGE 8

 

Conduct

19.8 Mr Van Der Lubbe points to the Judge’s indication that he expected

him to conduct himself “with proper decorum throughout this trial”3`

as a further indicator of bias. The Court has inherent power to

control conduct in the Court room and evidentially the Judge felt it

was necessary to give this warning. The transcript of the preliminary

part of the trial on 11 March 2013 is not available but there are

exchanges in the transcript at later points of the trial where Mr Van

Der Lubbe appears to be arguing with the Judge. The Judge was

entitled to try to control this. An example of this is at page 134 of the

case on appeal where there appear to be interruptions of the Judge by

Mr Van Der Lubbe noted in the square brackets. The same approach

was taken by Mr Van Der Lubbe in the course of giving his evidence.

An example is in the case on appeal at page 94 where the Judge rules

against allowing Mr Van Der Lubbe to show photographs to the jury

and asks him to move on to his next point.’ Mr Van Der Lubbe

retorts “so they would be grounds for appeal?”36 and goes on to say

“I think I am getting a raw deal here but I will carry on.”37 Mr Van

Der Lubbe’s conduct as a lay litigant in a jury trial was a legitimate

concern for the Judge.

 

The Crown has trawled through the entire trial transcript looking for a transgression to hang me with but have come up empty handed. It was the Crown Prosecutor who did all the interrupting, all the misleading and justice obstructing. Page 94 is a classic example of Judge Cameron, on the one hand delaying ruling on the matter of me being allowed to show photographs/documents to the Jury until the trial SHOW RULING PAGE 55A [5] of the bundle and when that time arrived and I ask to show the (HARD COPY) photographs to the jury he rules against me and asks me to move on to my next point.’ So what do I do? I say, “so they would be grounds for appeal?” And that reasonable question is now held up by the Crown as an example of my alleged disruptive demeanor and a justification for Judge Cameron’s earlier attempt to intimidate me from presenting my defense case. SEE 61A [9] of the bundle.

3s

The Crown is engaging in smear tactics by using the word “retort” to describe my reasonable reply.

The Crown person that wrote that is no better that the obnoxious Crown persons described in page 39A [60]  of Judge Clapham’s 4 February 2011 decision.

 

SEE [63] of Judge Clapham’s 2011 decision is the true state of affairs viv a vis my conduct in any Court. Judge Cameron’s oral judgment of 11 March 2013  61A [9] of the bundle is nothing short of an attempt to intimidate me from defending myself in Court.

 

Defibrillator

19.9 Mr Van Der Lubbe points to an exchange with the Judge about a

defibrillator as another indicator of bias. Again, there is no evidence

that this exchange happened in the manner alleged.

 

That that exchange is not in the record is no proof that it didn’t happen. It’s not surprising that it’s not in the record when you consider that the interference in the Courts process by banned Crown prosecutor Lance Rowe was not in the first transcription either. The defibrillator exchange did happen and saying that there is no proof that it happened because it’s not in the record is proves nothing. If the recording of the relevant time (right at the beginning of the trial) was played to this Court the Crown would have to admit it is wrong.

 

Photographs displayed on television

19.10 It appears that Mr Van Der Lubbe had not brought ‘hard copy’

versions of the photographs that he wished to refer to. Mr Van Der

Lubbe intended to use the photographs to illustrate an incident on

3 September 2011 where Mr Poynter carried out a home kill with a

rifle at the back of his property and within the Wanganui City

boundary.

 

I wanted to show a number of digital photographs and documents to the Jury and was earlier told by Court staffer Rod Newport that I would be able to, but when I asked Judge Cameron for permission he said no, “I don’t think it’s sufficiently important enough fopr that to occur.” Page 92 15 of the bundle.

 

For the Crown to now allege that my wish to use the TV display was only to show photographs of an 3 September 2011 incident is wrong. There were no photographs of that incident, only a sound recording and it didn’t occur within the Wanganui City boundary. In fact the incident occurred about 100 meters outside the City boundary but half that distance from my home. When I asked to show hard copy photographs, xrays and Police documents of the cat shooting incident and alleged cattle theft incident to the Jury those requests were ruled irrelevant by Judge Cameron.

 

I had many photographs and documents relating to a number of incidents to show the jury but I was denied all.

 

Page 9

 

The photographs were of that boundary. Given that the

photographs related to an irrelevant matter the Judge’s refusal to have

them put before the jury was an orthodox response and not a product

of bias.

 

Why would the firing of a high-powered firearm within the City limits about midway during Poynter’s harassment campaign be “Irrelevant? To rule all that out as irrelevant was clearly a product of bias.

 

Previous ruling ofJudge McElrea

19.11 Mr Van Der Lubbe also sees bias in Judge Cameron’s apparent

overruling of Judge McElrea’s earlier decision that “the accused must

be allowed to show the truth of some key parts of this ‘pattern’ if he

wishes to — although it would be counterproductive — in order to

persuade the jury that he actually held that view — that it, that it is part

of the circumstances as he believed them to be.”38 Again, the Judge’s

response to this previous ruling is perfectly orthodox and cannot have

created a reasonable apprehension about his impartiality for a fair

minded observer. This is because:

 

I covered the changing of the wording of Judge McElraes by the Crown earlier so I don’t need to repeat myself here.

 

19.11.1 Judge McElrea heard an application by the Crown to set

aside witness summonses not the admissibility of evidence in

support of self-defence;

 

 

 

19.11.2 One District Court Judge cannot bind another;

 

Is that correct or is the Crown trying it on again? If true Judge McElrae put me crook. I prepared my defense based on what he had ruled and when Judge Cameron overruled him it threw my whole defense into disarray. After I was interrupted in my attempt to outline the long pattern of Police malfeasance against my family which directly led to my self-defence actions of 28 Aug and Sept 3 2013 a legal discussion about admissibility and irrelevance ensued and when ( page 96 of the transcript) the trial resumed I was told by Judge Cameron to continue. “I said to Judge Cameron “I’ve got no idea where to start. SEE JUDGE CAMERON’s ruling dated 12 March 2013 bottom of page 2.

 

 

19.11.3 Judge McElrea explicitly noted that he had heard no

evidence and had made no findings on facts relating to the

self-defence argument;39

 

But he did state that he’d heard enough to rule that I MUST be allowed to try to prove the pattern of malfeasance. [30] and [31] of his ruling.

 

19.11.4 Judge Cameron had charge of the trial and was responsible

for the fairness of that trial. As it was, he decided that there

was no basis for a self defence argument and ruled

accordingly.°

 

Which was in direct contrast to Judge McElrae and Judge Clapham.  SEE Clapham desion pages 26A and 27A of the bundle. Judge Cameron failed in his responsibility to give me a fair trial. Simple as that!

 

19.12 This did not, however, mean that Mr Van Der Lubbe was not

permitted to give any evidence of previous matters and the Judge did

 

PAGE 10

 

indulge Mr Van Der Lubbe to an extent in his evidence in chief where

Mr Van Der Lubbe gives evidence of:

 

19.12.4 Mr Poynter’s shooting of four of Mr Van Der Lubbe’s deer

that had escaped their enclosure;41

 

19.12.5 Being shot at by Mr Poytner and calling 111 on his cell

phone as he lay flat on the ground;42

 

19.12.6 His belief that Mr Poynter shot his cat.43

 

The truncated evidence of previous matters that I WAS permitted to give led directly to the Jury asking the questions about provocation and intent. Had I been permitted to present my full defense case including my photos and police documents, and had Judge Cameron not misdirected the Jury on the their provocation and intent questions I would have been aquitted of both charges.

 

 

Interruption during play back of 111 call

 

19.13 This is presented by Mr Van Der Lubbe” as a denial by the Judge of

an opportunity to represent himself properly. A fair reading of the

transcript does not disclose any such unfair judicial interference. The

111 call is played at 12.45pre with Mr Van Der Lubbe asking the

Court whether it could hear the sound of a suppressed .22. The

Judge replied “let us just hear the whole thing and then you can

comment”.” The audio then ends at 12.50pm47 and the Judge invites

Mr Van Der Lubbe to comment at that point by saying “alright Mr

Van Der Lubber° There is then an extended and uninterrupted

passage of transcipt where Mr Van Der Lubbe comments on the

incident leading to the call for the rest of page 99 of the case on

appeal up to the beginning of page 100. This was an opportunity to

make a comment about the sound of a .22 had Mr Van Der Lubbe

wished.

 

My whole purpose of playing that recording was so the jury could hear the difference between someone firing a suppressed 22 rifle almost directly at me and a suppressed 243 rifle that Poynter killed the deer with on the night of 28th of August 2012 fired away from me, at a distance of about 150 meters; shots that woke me up through a closed window. The Jury had heard the Police 111 recording of the deer shooting shots earlier.

 

I appear to suffer from a loss of concentration when I’m in stressful situations and if my train of thought is interrupted, as it was then by Judge Cameron, I simply forget where I am and continue with what is written down in front of me. I forgot all about my wish to demonstrate the difference between suppressed 22 shots fired almost directly at me and high-powered shots fired away from me at over 100 meters.

SEE page 99 [5] and [10]of the transcript. The record shows that I carried on with my evidence with the actual purpose for playing the recording completely forgotten.

 

 

Refusal to allow Mr Van Der Lubbe to show the jury Police and Court

Documents

 

19.14 Again, this is no indication to a fair minded observer of bias. The

documents apparently related to an allegation by Mr Poynter that Mr

 

PAGE 11

 

Van Der Lubbe had stolen two of his cattle two years’ prior to the

offending at issue in the trial in 23 June 2009. While the Judge

allowed Mr Van Der Lubbe to give some evidence of this in chief’) he

did not allow him to elaborate through production of papenvork.5°

Given the irrelevance of the material he was not wrong to do so and

so the ruling is symptomatic of the extra-legal approach of the selfrepresented

Mr Van Der Lubbe rather than any bias on the part of

the Judge.

 

Judges Clapham and McElrae, quite independently of each other, decided that the information about the alleged cattle thefts was both relevant and cogent to my pattern of provocation and police complicity argument. That Judge Cameron ruled against me fleshing out my argument of Police complicity with relevant photographs, Police and Court paperwork was another product of bias.

 

 

 

 

Shortening of the trial unfairly

19.15 Again, there is no evidence in relation to this matter and Mr Van Der

Lubbe has not pointed to any part of the record which discharges his

onus to present cogent evidence of bias. In any event, the close of

the defence case is detailed at paragraph 19.5 above. Arrest warrants

were not sought for the witnesses and no adjournment was sought

either. The record shows that the trial came to a close because Mr

Van Der Lubbe had called the witnesses he wanted to and there is no

indication that he was prejudiced by any concerns about time on the

part of the Judge.

 

“Again, there is no evidence.”

 

There’s heaps of evidence missing from the Court record,

The initially missing proof that the previously banned Crown Prosecutor Lance Rowe interfered in the Court process is one example. SEE TRANSCRIPTIONS.

 

THAT THE CROWN HAS NOT MENTIONED THAT MATTER IN ITS REBUTTAL IS PROOF THAT LANCE ROWE’S INTERFEARANCE IN THE COURT’S PROCESS WAS IMPROPER OR MABEY WORSE.

 

Evidence that the cat had been shot

 

19.16 Whether or not Mr Poynter had shot Mr Van Der Lubbe’s cat in

20105′ did not give rise to a defence for threatening to kill/commit

grievous bodily harm in 2011.

 

The Crown is deliberately missing the point here, the shooting of my cat by Stephen Poynter was but one of the potentially deadly provocations committed by him during his long intimidation campaign. It was the total sum of the provocations that led to the threats, and cannot be singled out for dismissal as the Crown has done here.

 

Improper Crown behaviour

 

19.17 A further aspect of the bias alleged against the Judge was his failure to

intervene in relation to alleged misconduct by the prosecutor.52 There

was no need for the Judge to intervene at this point because there was

no misconduct. There was nothing improper in the prosecutor asking

an open question at page 5 line 9 of the case on appeal when leading

the evidence of the complainant, Mr Poynter. Mr Mallalieu asked an

open question “do you recall particular use of your firearm on that

day?”

 

Attempting to mislead the Court by putting false words into the mouth of a sworn witness is highly improper. An attempt to pervert the course of justice even. Page 5 (5 to 25) of the bundle  SEE page 2 of Poynter’s Police statement, that the Prosecutor had in his possession, revealed that Poynter remembered exactly what occurred on the dates mentioned.

 

PAGE 12

 

in referring to 3 August 2011 (the date of the offending alleged

in count 1 of the indictment). 53 Mr Poynter’s response was that he

could not recall that particular day.54 Mr Poynter gave evidence on

eradicating pests such as deer and goats on his property with a

firearm, 55 on how frequently he would shoot on his property 56 and so

forth. The use of firearms that was a feature of the neighbour’s

dispute was therefore squarely in front of the jury. If the evidence

lacked specificity for Mr Van Der Lubbe it was open to him to crossexamine

Mr Poynter on his previous statements.

 

The realization that the Crown Prosecutor was laying the groundwork for Poynter’s later feigned memory losses came to me upon reading the trial transcript well after it was over so to say that “it was open to him to crossexamine Mr Poynter on his previous statements” at the time cannot apply to me. That I didn’t spot the skullduggery at the time is proof of my naivety not that Justice abuse didn’t occur.

A classic example of Poynter’s feigned memory losses and evasions can be see on pages 50 and 51of the Trial transcript starting at the top and finishing at 15.

 

 

 

Sentence

  1. The fines imposed by the learned District Court Judge were well within range.
  2. There is no tariff for threatening to kill or cause grievous bodily harm.
  3. In Faakaga v R57 this Court said:

It is difficult to discern any consistent pattern in sentences on charges

of threatening to kill. R v Forrest is at the more serious end of the

range. A sentence of three and a half years imprisonment was upheld

on appeal. However, the circumstances were far more serious than

the present case and involved three charges of demanding money

with menaces and four of threatening to kill made while the appellant

was in prison. At the other end of the range, non-custodial sentences

have been imposed in some cases.

 

  1. The Judge, in his summing up, said “if accepted” provocation would have to

be taken into account in imposing any penalty. There is no mention of the

issue of provocation as a mitigating factor in the Judge’s sentencing. The

Judge heard the evidence and may have decided that there was no provocation.

Perhaps he decided that hearing shooting in a semi rural area was not

something that could amount to provocation. Whatever the case, while it is

important to look at the construction of sentencing it is the end result that

counts .58

 

And there’s that semi-rural area fallacy/excuse again. An excuse Poynter, the police, Crown lawyers and some judges use and have used to justify and condone the outrageous, dangerous and very disturbing high-powered gunfire my family has been subjected to for the last 8 years. THE JILL PETTIS AND DUNCAN MCLEOD LETTERS OF JUNE 2007 PROVE THAT THE USE OF SEMI-RURAL TO DESCRIBE THE PATTERSON STREET ROBERTS AVE AREA IS WRONG.

 

Judge Cameron studiously avoided mentioning provocation in his sentencing because he needed to continue the fiction that the police condoned 8 year long campaign of provocation, intimidation and harassment by Stephen Poynter of my family never occurred. To have accepted provocation as a mitigating factor in sentencing would have exposed the hypocrisy and bias of the stance he took during the trial.

 

As far as he was concerned Stephen Poynter and the police were blameless. It was all in my imagination, according to Judge Cameron I am a liar (implied) and an attention seeker. SEE  HIS SENTENCING NOTES. Page 182 [6] of the bundle.

 

 

 

 

PAGE 13

 

  1. Mr Van Der Lubbe was charged with two offences that carried seven years’

imprisonment as a maximum and had a presentence report recommending

home detention (ie, effectively prison).” While admittedly this

recommendation was well-wide of the mark it does emphasise the seriousness

of the offending. It was deliberate and pre-meditated and Mr Van Der Lubbe

was thought to pose a “significant risk” because of the justifications put

forward for his actions.6° In the end, the Judge imposed a fine which in the

hierarchy of sentences is one step up from the conviction and discharge that

Mr Van Der Lubbe himself was seeking.’

 

And just to cap it all off the Crown gets that wrong too.  I never sought a conviction and to say that I did is simply ridiculous. I never wanted, sought or deserved a conviction?

 

26 August 2014

 

 

 

PLEASE DISREGARD STEPHEN POYNTER’S VICTIM IMPACT STATEMENT, LIKE THE MAJORITY OF WHAT HE HAS SAID ABOUT ME, ITS MOSTLY LIES AND PLEASE QUASH THE CONVICTIONS.

 

 

Thank your for you patience.

 

 

CROWN REBUTTAL TO MY SUBMISSIONS

 

WAITING FOR THEM TO ARRIVE FROM THE COA

 

Cranstoun, Nicola <Nicola.Cranstoun@justice.govt.nz> 

 

Oct 17

 

to me

 

Good afternoon

 

In regards to the Appellant’s request for a copy of the transcript Justice French directs:

 

“Permission granted for the provision of a transcript limited to submissions made by Crown counsel.”

 

                                                                                                                                                                            French J 17-10-14

 

A copy of the transcript of crown submissions made at the Court of Appeal hearing will be sent once transcribed.

 

Regards Nicola Cranstoun.

____________________________________________________________________

COURT OF APPEAL DECISION

VAN DER LUBBE v R CA305/2013 [2014] NZCA 495 [8 October 2014]

 

IN THE COURT OF APPEAL OF NEW ZEALAND
CA305/2013 [2014] NZCA 495

 

 

 

 

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

 

Introduction

 

[1] The appellant, Jacobus van der Lubbe, was convicted after a jury trial of one count of threatening to do grievous bodily harm and one count of threatening to kill. Both charges relate to the same complainant. Mr van der Lubbe was fined $1,000 on each count by the trial Judge, Judge Cameron.1 He appeals against conviction and sentence.

 

[2] The focus of the conviction appeal is on various ways in which Mr van der Lubbe says the trial Judge was biased against him so as to give rise to a miscarriage of justice. Mr van der Lubbe says the sentence is manifestly excessive. We deal with the conviction and sentence appeals after setting out the background.

 

Background – a dispute between neighbours

 

[3] Mr van der Lubbe and his neighbour, Mr Poynter, live in Wanganui. Mr Poynter in his evidence said that part of his property was residential but “a good 85%” was rural. Mr van der Lubbe told us the properties were residential with a rural aspect.

[4] As Judge Cameron said in sentencing, the background to the charges lies in Mr van der Lubbe’s ongoing dispute with Mr Poynter about Mr Poynter’s use of firearms on Mr Poynter’s property.2 As a means of trying to resolve the dispute, an agreement was made whereby Mr Poynter would advise the police when he was about to use his firearms.

[5] The Crown case was that on 3 August 2011, Mr Poynter advised the police of his intention to use a firearm. Mr van der Lubbe was not advised. Mr Poynter used his firearm. Mr van der Lubbe made a 111 call reporting the use of the firearm next door. When Mr van der Lubbe was told the police had been advised Mr Poynter was going to use his firearm, the following exchange took place:

 

2 At [2].

 

 

 

VDL That I am going to carry out my threat now, I am going [Mr van to buy my own firearm and I am going to use it to disable

der Lubbe] my neighbour.

Comms Well why would you do that?

VDL Because, I, I’ve warned the Police already

Comms Yes.

VDL and that’s what I’m going to do. You just convey that message to the Police in Whanganui, that’s what I’m going to do, alright?

Comms Okay, so you want to spend the rest of your life in jail just because someone’s

 

VDL That doesn’t worry me, that doesn’t worry me, I’m sixty now and I’ve had a gutsful, I am going to buy a firearm and I’m going to use it to disable my neighbour, okay. Goodbye.

[6] A similar set of events occurred on 23 August 2011. Mr Poynter advised the police he was going to use the firearm but Mr van der Lubbe was not advised. At about 2.40 pm that day Mr van der Lubbe rang 111 stating he had heard a gunshot. The call centre later rang Mr van der Lubbe and left a message explaining that the gunshot sound was due to Mr Poynter shooting a pig. Mr van der Lubbe rang 111 again and the following exchange transpired:

 

COMMS …you’ve rung through on the triple one line so it’s ah…

HS You’re fucken, fucken useless fucken cops. (Shouting).

[Mr van

der Lubbe]

COMMS Do you want us to send them round to you Jack?

HS You’re just fucken useless, I’m gonna buy me own gun I’m gonna kill that [c..t].

[7] At trial, Mr van der Lubbe represented himself. He did not deny he made the calls or that he used the words identified. Rather, he relied on provocation and self-defence. He gave evidence. In the course of his evidence he said that by making the telephone calls he was “laying a paper trail” and he “wanted to be arrested” so he could tell his story in court and “the gunshots would be stopped permanently”.

[8] Judge Cameron told the jury it was not open to them to consider self-defence and that provocation was not a defence although it could be relevant at sentencing.

 

Issues on conviction appeal

 

[9] Mr van der Lubbe raises various matters which he says illustrate bias on the part of Judge Cameron. However, the key concerns underlying these complaints relate to what the jury was told about self-defence and provocation. In particular, the direction that self-defence was not open to Mr van der Lubbe and that provocation was only relevant to sentence. Accordingly, because this is really the substance of Mr van der Lubbe’s arguments, we focus on these two aspects and deal only briefly with the other matters he raises.

 

Self-defence and provocation

 

[10] An important plank in Mr van der Lubbe’s argument derives from a pre-trial ruling of Judge McElrea.3 Judge McElrea was dealing with two Crown applications to set aside witness summons. In the course of the ruling Judge McElrea said that evidence to show what Mr van der Lubbe described as a “pattern of police malfeasance” could be relevant at trial.4 The Judge said that he “cannot rule out [Mr van der Lubbe’s] submission that he is seeking to prove such a well established pattern of malfeasance that he was ‘forced’ (his word) to make these threats”.5

[11] Judge McElrea went on to say:

 

3 R v van der Lubbe DC Wanganui CRI-2010-083-402, 24 August 2012. The year in the file number is actually 2012.

4 At [29].

5 At [30].

 

[31] Of course what the jury will have to decide, if the defence is left to them to decide, is the state of affairs as the accused believed it to be. The truth or falsehood of his “pattern of malfeasance” view is (strictly speaking) irrelevant to that inquiry. I therefore have considered whether, on this basis, evidence of the truth of that view is irrelevant and inadmissible, but have concluded otherwise. The accused must be allowed to show the truth of some key parts of this “pattern” if he wishes to – although it could be counterproductive – in order to persuade the jury that he actually held that view – that is, that it was part of the circumstances as he believed them to be.

 

[12] Mr van der Lubbe submits that Judge Cameron’s rejection of self-defence is inconsistent with Judge McElrea’s ruling and demonstrates bias on the part of Judge Cameron. We interpolate here that Judge McElrea foreshadows the possibility, in the passage we have cited above, that the defence will not be left to the jury. Mr van der Lubbe also says he was left at a loss once he knew self-defence would not be put to the jury.

[13] We see no merit in Mr van der Lubbe’s argument on this aspect. Judge Cameron was correct to refuse to let self-defence go to the jury. The factual narrative did not support the defence. Mr van der Lubbe was not acting in defence of himself or another but rather out of concern that otherwise no action would be

taken by the police to stop what he saw as intimidation by Mr Poynter. His concern was at matters such as the use by Mr Poynter, on Mr van der Lubbe’s account, of a higher calibre gun than a .22. As Mr van der Lubbe put it in evidence:

… I decided that I would get myself arrested by uttering the kill word in the hope that all the dangerous provocations would stop.

I was trying to get arrested to stop the gunshot.

 

[14] He also said that he had decided that the first call, to the effect that he was going to “disable” Mr Poynter, “wasn’t going to do, wasn’t going to do the job” and hence he made the later call on 23 August.

[15] We add to complete the narrative that in his evidence Mr van der Lubbe said that the shooting had stopped. On his account, this was because Mr Poynter was “happy as Larry” that Mr van der Lubbe had been charged.

[16] In addition, the force (or threat of force) used was not reasonable in the circumstances.

[17] Mr van der Lubbe was in any event permitted to give evidence of the key features he would have had the jury rely on. As Mr Lillico notes, Mr van der Lubbe gave evidence of his belief that Mr Poynter shot four of Mr van der Lubbe’s deer that had got out of their enclosure; that on an earlier occasion he had been shot at on his account by Mr Poynter and called 111 on his cellphone as he lay flat on the ground; and his belief that Mr Poynter shot his cat.

[18] As a matter of law, Judge Cameron was also correct that provocation was not a defence. Mr van der Lubbe does not advance any other possible defence. The Judge’s directions did not indicate bias.

 

Other matters

 

[19] We now briefly discuss other matters Mr van der Lubbe relies on to show bias.

 

Time to prepare defence

[20] Mr van der Lubbe sought a deferral of the trial date to give him further time to prepare his case. Judge Cameron initially declined to adjourn the trial but ultimately did so. There is no complaint from Mr van der Lubbe about the adequacy of the amended trial date in terms of his preparation. Against that background, bias on the part of the Judge is not established.

 

Witnesses

[21] Two points are made here. First, Mr van der Lubbe said he was asked to advise the names of his witnesses and secondly, he was disadvantaged when three of his witnesses did not attend. There is nothing on the record about the former point. As to the second, it appears that three witnesses did not show up. However, no steps were taken by Mr van der Lubbe in relation to that. For example, no application was made for an adjournment and nor was there an application for a warrant to ensure attendance. Mr van der Lubbe says he did not know about the latter option. That may be so but this is not a basis for suggesting bias on the part of the Judge. There is also nothing to suggest that these witnesses’ evidence would have been material.

 

Failure to appoint counsel assisting

[22] Mr van der Lubbe says bias is indicated by the failure of the Judge to appoint counsel assisting and to advise Mr van der Lubbe to obtain legal advice.

[23] As to the latter, Judge McElrea in his ruling prior to trial urged Mr van der Lubbe to get a lawyer. The Judge said this:

 

[42] So nothing that I have said here means that [Mr van der Lubbe] is deprived of the opportunity to present his defence. But I do urge him to engage counsel because these issues of practice and procedure of the court, and issues of evidence, are in many ways technical issues on which the advice and assistance of a qualified lawyer is of great benefit. If [Mr van der Lubbe] is to have any real prospect of success, I suggest to him as a final note that he would be well advised to use the services of a lawyer.

 

[24] The failure to appoint counsel assisting is not an indication of bias. This Court in R v McFarland said:6

6 R v McFarland [2007] NZCA 449 (citation omitted).

7 R v van der Lubbe DC Wanganui CRI-2012-083-402, 11 March 2013.

 

[53] … the appointment of amici in criminal cases should be rare. Where an accused indicates that he or she wishes to represent him or herself, the court should ensure that he or she is aware of the right to counsel and of the availability of legal aid. The accused should be afforded an adequate opportunity first, to consider whether to take advantage of those rights and second, to exercise them if that is what he or she wants. But it is important not to overlook that accused persons have the right to present their defences personally. … As this Court emphasised in R v Cumming [2006] 2 NZLR 592 at [40]–[46], the right to self-representation is an important right, the purpose of which is to “affirm the dignity and autonomy” of accused persons in addressing criminal charges.

 

[54] Accordingly, if, having been appropriately advised and given sufficient time …, an accused chooses self-representation, that choice must be respected, and the accused must live with its consequences.

 

[25] We add here that there is no issue about Mr van der Lubbe’s knowledge of the availability of legal aid.

[26] In these circumstances, there cannot be any criticism of Judge Cameron’s approach.

 

Various exchanges with the Judge

 

[27] Mr van der Lubbe points to the Judge’s observation in a judgment declining to recuse himself to this effect:7

 

[9] Mr van der Lubbe. I will say this to you now, I expect you to conduct yourself with proper decorum throughout this trial, and that includes not interrupting a Judge when he is making a decision, and if you do not conduct yourself with proper decorum, you can expect me to hold you to account and I do not think that would be necessarily in your interests in front of a jury, so you will show proper courtesy and respect to the Court process throughout this trial.

 

[28] There are indications on the record of Mr van der Lubbe arguing with the Judge. For example, in his ruling of 12 March 2013, there are various interpolations apparently from Mr van der Lubbe indicating he was arguing while the Judge was delivering his judgment.8 For example:

8 R v van der Lubbe DC Wanganui CRI-2012-083-402, 12 March 2013.

 

[1] Mr van der Lubbe we need to keep the trial focused on the issues which is the charge you are facing, [Mmm], right? [Yeah]. … I am not going to permit you to flesh it out, if you like, [why not?] by going back to the [otherwise it’s just hollow words], old incidents because again it is a distraction for you to go into detail about how you have gained that mistrust and it is, therefore, irrelevant to the charges. [Irrelevant, I hate that word, I hate that irrelevant word]. Well you may but that is a word that the Court has always used because trials have to run efficiently and that means only evidence relevant to the issues is admissible in law. [That fact that I’ve been treated like crap for 25 years, I’m not able to explain why?]

[29] The record suggests that the Judge was properly ensuring that the conduct, in the context of a jury trial, was not going to disadvantage Mr van der Lubbe. The same comment applies to other similar criticisms made by Mr van der Lubbe.

[30] Mr van der Lubbe is also critical of the Judge’s failure to stop him from giving evidence about previous convictions. This criticism relates to evidence from Mr van der Lubbe when he postulated that the jury might be wondering why the police were “acting in such a biased and an obstructive manner” towards him. He said he would turn back the clock and explain. He continued:

 

In 1987 I made the life changing mistake of making a complaint against policemen. After having my home invaded by a mob of cops looking for non-existent illegal drugs, I tried to get redress against the person who had made the false allegation against me.

 

[31] Mr van der Lubbe went on a little further talking about various false allegations involving drugs made by a Mr Cornelius against him. At this point, the Crown prosecutor objected querying the relevance of this evidence. Judge Cameron then asked Mr van der Lubbe what it was he was trying to say. Mr van der Lubbe responded that he was trying to say that the police were treating him in the way they did because of the lies in his police file. The Judge said he thought Mr van der Lubbe had made his point, to which Mr van der Lubbe responded: “Not yet I haven’t.”

 

[32] Again, we see nothing in this other than the Judge trying to maintain some control over matters of evidence and relevance.

[33] Mr van der Lubbe also points to an exchange with the Judge about a defibrillator as a further indicator of bias. There is no evidence that the exchange happened in the way alleged.

 

Decisions in the course of trial

 

[34] Mr van der Lubbe is critical of various decisions made by the Judge in the course of the trial and at what he says was deliberate delay in dealing with an application about the admission of some documents. To illustrate the first criticism, Mr van der Lubbe had some photographs he wished to show to the jury on the computer. He also said he was prevented during the playing of the 111 call from being able to point out to the jury that the gunshot sound was not that of a .22 calibre rifle. There is a further complaint about a restriction on the use of documents.

[35] None of these matters relate to anything of particular relevance to the trial. They do not demonstrate bias on the part of the Judge but rather a concern to keep matters focused on what was relevant and maintain some control. Similar comments can be made about allegations of bias based on the Judge’s failure to intervene with respect to alleged misconduct by the prosecutor.

 

Sentence appeal

 

[36] We accept the submissions for the Crown that the fines imposed were within range.

[37] The only potential issue Mr van der Lubbe can raise relates to the impact of provocation. The Judge makes no mention of that issue in sentencing. In summing up the Judge had explained that, “if accepted”, provocation would have to be taken into account in imposing any penalty. Perhaps, as Mr Lillico submits, the Judge decided that hearing shooting in the area was not something that could amount to provocation. In any event, there can be no criticism of the end result. Mr van der Lubbe was charged with two offences carrying seven years imprisonment as a maximum.9 Mr van der Lubbe had been offered the opportunity before proceeding to trial of a 12 month good behaviour bond on a guilty plea but decided to proceed to trial. In the circumstances, the imposition of fines of $1,000 for each conviction was well within range.

9 Crimes Act 1961, s 306.

 

Result

[38] For these reasons, the appeal against conviction and sentence is dismissed.

 

Solicitors:

Crown Law Office, Wellington for Respondent

 

MY APPLICATION TO THE SUPREME COURT

It is obvious to anyone who reads in order, my Grounds for Appeal to the Court of Appeal, my Submissions for Appeal, the Crown’s rebuttal of my Submissions of Appeal and then the Court of Appeal Judge’s 8 October 2014 decision to dismiss my appeal, that the Court of Appeal Judges have used the Crown’s Rebuttal of my Submissions as a template to configure their decision to unfairly dismiss my appeal. 

 

In their haste to preserve the status quo (the unjust convictions) the Court of Appeal Judges have repeated and compounded the Crown’s errors of facts, ignored the Crown’s deliberate attempt to reword the Court Record and tossed aside my incontestable statements of fact and supporting documents.

 

And to cap it all off the COA Judges have simply ignored or failed to address or even mention a number of crucial issues cited in my submissions that were uncontested by the Crown.

_____________________________________________________________________

 

In the following submissions I have copied the Court of Appeal Judge’s method of dealing with matters by picking apart their reasons for their dismissal of my Appeal.

Because I was limited to 10 pages for my Leave to Appeal to the Supreme Court Application submissions I have had to truncate the Court of Appeal Judge’s numbered comments to the first few words. Only my words are italicized.

 

VAN DER LUBBE v R CA305/2013 [2014] NZCA 495 [8 October 2014]

 

Introduction

 

[1] The appellant………..

 

[1] My neighbour, Stephen Charles Poynter was not the complainant, the prosecution was Police driven and they acted alone. He made no complaint in this instance. Poynter was a Crown witness only, and a ghastly one at that.

 

[2] The focus ………..

 

[2] Nowhere in my submissions or grounds for Appeal did I say that the “sentence is manifestly excessive.” The Crown lawyer used the word “excessive” in his rebuttal and the Court of Appeal Judges added the word “manifestly” and then wrongly attributed both words to me. That’s two factual errors and I’ve only just begun.

 

Background – a dispute between neighbours

 

[3] Mr van …………

 

[3] So who do the Court of Appeal Judges choose believe? They chose to use the trial words of the pathological perjurer Stephen Poynter rather than mine to them in person, and they have failed to mention the photograph I showed them that proved my contention that the properties are residential with a rural aspect.

And anyway, most of the offending gunfire was fired either in or within 100 meters of the claimed 15% residential area of Poynter’s property. Poynter and the police say his property is semi- rural in an attempt to excuse Poynter’s outrageous gunfire. The Inspector McLeod/Jill Pettis MP correspondence that the Court of Appeal Judges saw also proves that the semi-rural tag used by the police and Poynter is a deliberate deception.

 

[4] As Judge Cameron ……………

 

[4] The Police and Poynter came to an arrangement whereby he would warn the police when he was about to fire his guns so that if my wife or I dialed 111 to report the shocking gunfire they could then tell us, “Oh it was Poynter “retiring” life-forms on his property so we won’t be responding in any way other than having a hearty laugh after you hang up the phone.

The Court of Appeal he Judges have failed to address the matter of the Police policy of never passing Poynter’s imminent gunfire warnings to the Police on to me or my wife. The Judges have seen the relevant and crucial Police document, it was in the “bundle” but they say nothing about it; the document proves a Police/Poynter conspiracy to deny us warnings in order that we would be shocked by the gunfire and hopefully react in an unlawful manner. The Court of Appeal judges have chosen to ignore the undeniable fact that the Wanganui Police are as criminally culpable as Stephen Poynter  .

 

[5] The Crown case…………..

 

[5] And right there lies the crux of the matter, a matter the Court of Appeal judges have failed to address. I believe the Judges failed to address the paramount issue because they are not interested in justice, they are only interested in preserving the status quo and to address the matter of the Police deliberately failing in their duty to keep the peace by not passing on Poynter’s warnings to them on to us would not be beneficial to their shabby whitewash.

 

Mr Poynter used ……………..

 

[5] The Judges know about but have failed to mention or address the proven fact that Poynter lied in his evidence about the caliber of rifle he used on both days; He told the Police that on both occasions he would use his suppressed 22 to kill the animals but he lied on both occasions and he repeated those lies in his sworn Police statement.

 

[6] A similar set …………

 

[6] And there you have it again; the Police acting in a corrupt manner and the Court of Appeal judges choosing to ignore hat corruption and thereby condoning and encouraging it.

 

At about 2.40 pm…………

 

[6] The addition of the above trial transcript is nothing but a crude attempt to smear me and justify a dishonest decision.

 

[7] At trial, ………….

[7] And that, according the “learned” judges of the Court of Appeal, is not the “reasonable” behaviour of a person who is acting in self-defence. What alternative did I have? The Police were being warned of the imminent explosions, and they had/have a deliberate policy of not passing on those warnings to me. As a major part of his intimidation campaign Poynter was killing or wounding my pets and stock, so what was I to do? My attempt to have “the gunshots stopped permanently was remarkably reasonable under the circumstances. I actually felt like responding in kind on more than one occasion, especially after my cat came home with a near fatal bullet wound, but I resisted the urge and decided to use words instead of bullets.

[8] Judge Cameron ………….

[8] Judge Cameron told the jury that self-defence could not be taken into consideration because I used the word annoy rather than provoke in my 111 call to the Police. However, Section 48 of the Arms Act 1983 uses the word “annoy” in its description so that is why I used the word annoy in my call.  It has been stated that the circumstances on the days of the charges were not serious enough for self-defence action to be sanctioned but when you weigh up ALL the facts, such as, the 5 year long campaign of intimidation and harassment that included, the deliberate shooting of my pets and live stock, the false firearms allegation conspiracy between Poynter, his wife and his casual worker, Tristan Robertson, Poynter’s false cattle theft allegations and Sergeant Drew Alison’s deliberately false “stolen” cattle search warrant application, Page 91 [25] [30] and page 92 [5]  of the Trial record and all the other deliberate provocations including the close by sighting of a caged rooster, close by stinking pigs and rubbish dump, etc etc. then my relatively subdued verbal threats to the Police and not directly to the provocateur are perfectly reasonable. Screaming motorbikes.

Issues on conviction appeal                                                                                                                  [9] Mr van der Lubbe …………..

[9]   “and deal only briefly with the other matters he raises.”

or ignore completely

The failure to address the matter of Judge Cameron describing my potential defence testimony as “venting”. The Court of Appeal Judges must have seen that comment as they trawled through the trial transcript looking for non-existent heated exchanges to bolster their opinion that I had argued with the judge at some point of the trial and thereby exempted Judge Cameron’s earlier attempt to intimidate me from defending myself.

 

The failure to address the matter of Judge Cameron describing me as an “attention seeker”,

The failure to address the matter of the previously excluded Lance Rowe interfering in the Court process. A matter that was not contested by the Crown.

The failure to address the matter of the Police policy of never passing Poynter’s warnings to the Police on to me or my wife.

The failure to address the matter of  Poynter lying  under oath about the calibre of rifle he used on both days.

The failure to address the matter of  Judge Clapham’s glowing character references of my behaviour in his Court. Page 26 A[10] of the bundle.

The failure to address the matter of Judge Cameron’s postponing of the rulings on the admissibility of certain documents until during the trial and then when the time came for me to introduce them to be dismissed as irrelevant. Page 55 A [5]of the bundle.

The failure to address the matter of properly addressing the matter of Judge Cameron’s refusal to let me use the Court TV to show my digital documents. Page 92 [15] of the Trial record. But when it came to the defibrillator matter they hastened to mention that, “There is no evidence that the exchange happened in the way alleged.”

 

 

Self-defence and provocation

[10] An important ……………….

[10]  Undeniable proof that there is a well established and ongoing pattern of Police malfeasance against my family is evidenced by their Comms document page number 188 where they state that they “never tell informt” that Poynter is about to fire his guns.

[11] Judge McElrea went on to say:…………….

 

[11] Yes I firmly believed that the circumstances were that I was acting in self-defence because the Police in their usual way of behaving towards my family were allowing Poynter to kill, maim our animals and threaten our physical and mental safety.

 

[12] Mr van der Lubbe …………………..

[12] Why would  Judge McElrea rule that I MUST be allowed to demonstrate the pattern of Police malfeasance if it were not that it might somehow bolster my claim that I was forced to act in self-defence by corrupt police policy? 

I said I didn’t know where to start after my evidence was so viciously truncated by an unfair and oppressive Judge Cameron. Not that I was left defenceless by it.

[13] We see no merit……………

 

[13] And right there they shoot their own argument down!

 

The Court of Appeal Judges have ignored the word dangerous because it conflicts with their stance that I was not acting in self-defence. Just like the Crown prosecutor and Judge Cameron did before them they have isolated the incidents of the days of the charges and ignored all the other DANGEROUS provocations, such as the firing of the shocking  unannounced shots, the shooting of my cat and deer, the false firearms and cattle theft allegations, ect etc.

 

 

I was trying to end the danger to my family, pets and livestock posed by the psychopathic Stephen Poynter and the Judges have chosen to ignore those undeniable facts.

 

[14] He also said ……………..

[14] Those are the reasonable actions of someone who wants to avoid a physical confrontation with Stephen Poynter, (hence the words to the Police only) but is desperate to have the killing, wounding and shocking gunfire stopped.

[15] We add ……………

[15] And that proved that I was correct and reasonable in doing what I did. My reasonable, harmless actions stopped Poynter’s dangerous behaviour.

[16] In addition, the force (or threat of force) used was not reasonable in the circumstances.

[16] So what would have been “reasonable”? Ring the culpable Police? Plead for a no-fire zone? Do nothing and watch the killing to continue? Sell up and move out?

[17] Mr van der Lubbe ………………….

[17] The jury showed that it believed my severely truncated evidence rather that the falsehoods put forward by the prosecution by asking the questions about provocation and intent but, true to form, Judge Cameron misdirected them on both matters.

[18] As a matter …………….

 

[18] Self-defence because of  DANGEROURS provocations is fully justified.

 

It appears that in this matter at least the Court of Appeal Judges did their homework, and they discovered that the word “annoy” rather than “provoke” is used in Section 48 of the Arms Act 1983, so instead of admitting that Judge Cameron was wrong and that he misdirected the jury when he said that that my use of the word “annoy” instead of provoke ruled out self-defence as a defence to the charges, the Court of Appeal judges have sidled around that repetitious and untruthful obstruction altogether by using the line, “The factual narrative did not support the defence.” I knew that the legally required word was “annoy” and that is why I used it.  Leaving out the word “DANGEROUS” out of that “factual narrative” line was the only way that line would have any chance of standing up to scrutiny.

 

Other matters

[19] We now briefly discuss other matters Mr van der Lubbe relies on to show bias.

 

Time to prepare defence

[20] Mr van der Lubbe ………………….

 

[20] Again the Court of Appeal Judges try to hide or gloss over the fact that thoroughly biased Judge Cameron attempted to deny me due process by setting an oppressively early trial date but then had to relent because of my application to the High Court to have his unfair stance overturned. Again the Court of Appeal show their own bias by ignoring the fact I had to make an Application to the High Court for more time before Judge Cameron backed down and vacated the unreasonably early trial date. It was Judge Cameron’s initial behaviour that showed without a doubt that he was biased and out to get me, and his later oppressive behaviour was more of the same.

 

Witnesses

[21] Two points ……………….

 

[21] “There is nothing on the record about the former point.” So I’m a liar am I? Preliminary hearings are not recorded, that’s why there is nothing on the record. Perhaps Judge Cameron’s preliminary hearing notes would reveal that he did in fact write down the names.

“but this is not a basis for suggesting bias on the part of the Judge.”

  The fact that he didn’t tell me that I could have asked for an adjournment indicates bias.

 

“There is also nothing to suggest that these witnesses’ evidence would have been material.”

What’s that? What sort of bull dust is that? It that the sort of mad supposition that the Court of Appeal passes for reasonable comments these days?

 

Their evidence would have added proof to my contention that in my case at least the Police and most of all Poynter were/are filthy liars.

 

And why didn’t Judge Cameron tell me that I could ask for an adjournment to make an application for a warrant to ensure attendance of my no show witnesses? Because he wanted to convict me, that’s why!

 

Failure to appoint counsel assisting

 

[22] Mr van der Lubbe …………….

[23] As to the latter………………

 

[42] So nothing ……………

 

[22] [23] My point always was, that out of all the Judges involved in this matter it was only Judge Cameron that failed to advise me to obtain legal counsel or representation and it was/is my contention that that failure to inform or even enquire indicated his bias and callous desire to convict me.  That another Judge did the correct thing and advised me to obtain legal assistance did not absolve Judge Cameron from his duty to keep me fully informed of my legal rights.

 

 

[24] The failure to appoint …………..

 

[53] … the appointment …………………

 

“the court should ensure that he or she is aware of the right to counsel and of the availability of legal aid.”

 

And there you have it, Cameron didn’t ask me anything about representation or legal aid, or the possibility of an amicus curiae, ever, and that, along with his oppressive behavior throughout the proceedings, which nullified all “the dignity and autonomy” I was supposed to retain, proves his bias against me.

To now say that because Judge McElrae gave me some advice earlier Judge Cameron was absolved from his duty to do the same is disgraceful.

 

 

[54] Accordingly, ……………..

 

[54] “if” is the operative word here. As I have already stated Judge Cameron failed in his duty on both counts.

 

[25] We add here ………………

[The Court of Appeal Judges mention legal aid but avoid mentioning the possibility of an amicus curiae being appointed.

[26] In these circumstances, there cannot be any criticism of Judge Cameron’s approach.

 

[26] Judge Cameron’s approach was to say nothing that might lead me to engaging a lawyer. That’s bias.

What I said to the Court of Appeal Judges about Legal Aid (That legal aid is only a grant for the destitute and I would have to sell the farm to pay for a lawyer) has absolutely no bearing on Judge Cameron’s calculated failure to advise me correctly. It seems to me that the Court of Appeal Judges are deliberately missing my point here by insisting that I was either apprised of my rights by someone other that Judge Cameron or that I already knew about the availability of legal aid and an amicus curie when my point was, as I have already stated that Judge Cameron was the person who should have kept me properly informed vis a vis my legal rights, but he did not.

 

Various exchanges with the Judge

[27] Mr van der Lubbe ……………….

 

[9] Mr van der Lubbe. ………………

 

[28] There are indications ……………….

 

[27]and [28]  Here we have another outstanding example of the Court of Appeal Judge’s own bias in favour of the Crown’s position. They have used a clear attempt by Judge Cameron to intimidate me from defending myself in a vigorous manner to prove their allegation that I misbehaved during the trial and then failed to counter balance it with Judge Clapham’s earlier glowing references in relation to my conduct in his Court? The Judges had Judge Clapham’s decision in their bundle but they have failed to act in a balanced fashion by not referring to it.

 

Judge Cameron and I were DISCUSSING why I should or should not be allowed to show the pattern of Police maleficence and to describe it as me arguing is false. Talk about trawling through the record and making something out of nothing. Am I expected to say nothing if I believe I’m being denied a fair trial? Arguing your case is what it’s all about isn’t it? Judge Cameron was overturning Judge McElrae’s earlier ruling that I MUST be allowed to try and prove my contention that there existed a pattern of Police malfeasance against my family.  Was I just supposed to stay quiet when a half of my defence case, that Judge Cameron cruelly described as a “venting”, was being torpedoed unjustly?

 

 

[29] The record suggests …………….

[29] “was not going to disadvantage Mr van der Lubbe.”

Well bugger me, how could I have misread Judge Cameron’s motives so badly? 

The entire Court record is a damming indictment on all concerned with the prosecution and control of the trial. That Poynter was allowed to get away with obvious perjury, that the Crown prosecutor’s criminal behaviour was condoned, the Police OIC memory losses, Pages 84 [25] [30] and page 85 [5] [10] of the Trial transcript, were also blatantly ignored and condoned and that the Judge was also so obviously oppressive towards me and biased in favour of the prosecution is an absolute disgrace.

Why didn’t the Court of Appeal Judges also use this exchange of views as an example of me arguing with Judge Cameron? Page 89 -20 –25-30- ]

Why didn’t the Court of Appeal Judges also use the exchange of views on Pages 134 and 135 of the bundle as an example of me arguing with Judge Cameron? Oh yes, me asking for a mistrial and saying that I wasn’t getting a fair trial would not be conducive to their argument that Judge Cameron was actually a decent fellow who only had my best interests at heart.

AThe crux of the matter is Jill Pettis’ intervention in the matter caused Duncan McLeod to charge Stephen Poynter with intimidation and unlawful discharge of a firearm.

Q   Well you don’t know that. A   Well I do know that. Q   That’s your opinion you have to stick to the facts, that is your-you are surmising about that. A   I have the documents here to prove that. Q   We are back to the same thing- A   The documents I relied upon. Q   You are surmising about the actions of others so- A  Anyway all provocations and gunshots by Poynter ceased from the time of his being charged. Nice and quiet, no more gunshots, no more other provocations.”

The unjust farce continues prior to and past this point but I’ve only got 11 pages to make my case so I’ll stop there.

[30] Mr van der Lubbe …………………..

 

Another MAJOR mistake by the Court of Appeal Judges here. The evidence was clearly not about “ convictions”, (no wonder they dismissed my appeal) the evidence that I was allowed to present and then got cut off after the damage was done was about the start of the pattern of Police malfeasance NOT PREVIOUS CONVICTIONS.. Page 96 10-15.

 

How can anyone have any faith in anything these “learned” Judges of the Court of Appeal  have said when they make such easily preventable schoolboy howlers such as this “previous convictions” one? The Court record proves them wrong and they had the Court record right there in front of them. They referred to Poynter’s perjurous  evidence to make their 85% semi-rural statement and they trawled through it in their fruitless search for “indications on the record of Mr. van der Lubbe arguing” so there can be no excuse other that biased stupidity for their “previous convictions” factual error.

 

This is what I actually said, “In 1987 I made the life changing mistake of making a complaint against policemen. (sic) After having my home invaded by a mob of cops looking for non-existent illegal drugs, I tried to get redress against the person who had made the false allegation against me.”

 

Where is the “previous convictions” in that paragraph? And I clearly stated in Court that I laid a complaint against a policeman and not “policemen” as the ever unreliable Court record states. Now do you see why I request DVD copies of the Court record. The written transcriptions can’t be relied upon to be accurate.

 

 

 

[31] Mr van der Lubbe went on a little further………………………..

 

 

[32] Again, we see nothing in this other than the Judge trying to maintain some control over matters of evidence and relevance.

[32] Why, if  Judge Cameron was “trying to maintain some control over matters of evidence and relevance”   did he not stop me after I uttered 1987. How could something that happened in 1987 possibly be relevant to an alleged crime committed in 2013? No, he let me go on because he wanted me to defame myself before he cut me off and then shove a spanner in the rest of my defence strategy with his threat of contempt if I kicked up even a minor stink still ringing in my ears. The Court of Appeal Judges “see nothing” because they don’t want to see anything that clashes with their pre-determined decision to dismiss my appeal.

[33] Mr van der Lubbe ……………………..

 

 

[33] Notice how the Court of Appeal Judges have avoided the matter of Judge Cameron’s refusal to let me show my documents on the Court TV screen?  “Not sufficiently important enough” was the reason given for that refusal. Page 92 15. The Judges couldn’t right that one off with “There is no evidence that the exchange happened in the way alleged.” So they avoided it altogether. The exchange about the defibrillator took place before the tape recorder chap cranked up his machine. The exchange where I objected to two prison officers attempting to sit either side of me that occurred at about the same time is not on the record either. And why are prison officers placed on either side of ACCUSED persons during the trial anyway? To make the supposedly “innocent until proven guilty accused person look guilty in the eyes of the jury, that’s why. Anyway in my case the prison officers had to sit somewhere else as I told them “no offence, but you’re not sitting by me.”

 

Decisions in the course of trial

 

[34] Mr van der Lubbe ………………………

[35] None of these matters ……………………

 

[34] [35]

 

This is the point where I felt like giving it all away in total disgust. Over the years I’ve had to put up with a lot of bull shite from people who have no qualms about putting such vague and obnoxious garbage such as that in [34]on the public record but the line, “None of these matters relate to anything of particular relevance to the trial.” really made my blood boil. The only reason I can think of why they wrote it is because they simply couldn’t think up a reasonable answer to my allegations. They were unable to address the issues in a realistic manner so they came up with a cowardly nothing.

 

Sentence appeal

 

[36] We accept the submissions for the Crown that the fines imposed were within range.

[37] The only potential ……………………..

“Perhaps, as Mr Lillico submits, the Judge decided that hearing shooting in the area was not something that could amount to provocation. In any event, there can be no criticism of the end result.”

“Perhaps”  Are these Court of Appeal Judges or the three speculators? They finish off this farce with a wink to the Crown lawyer who conjured up a supposition about what Judge Cameron might have been thinking once upon a time. But there is more to that ridiculous statement than they thought; if there was more than distant shooting going on then “perhaps” it might have amounted to provocation and “perhaps” provocation and self-defence should not have been ruled out by the biased judge? 

I chose a jury trial because I have good reason to believe that most judges are pro-prosecution and Judge Cameron and these three Court of Appeal judges appear to be firmly in that camp.

  It was Judge Cameron’s duty to correctly instruct the jury on matters of law and not, as Mr Lillico and the Court of Appeal judges so casually seem to condone, corruptly ruling out the well documented 5 years of provocations carried out by Stephen Poynter against my family by dismissively surmising that the gunfire came from some distant corner somewhere. A “distant corner” that was never used to fire the guns in and was also never more than 270 meters from the Wanganui city boundary or 165 meters from someone’s home.

 

Misdirecting the jury that there was no relevant provocation and because of that there was also no grounds for self-defensive action was wrong and a disgrace. Jury question number one clearly showed that the jury believed that I had been severely provoked by Poynter but true to form Judge Cameron, aided and abetted by the prosecution and an interfering banned Crown prosecutor Lance Rowe, wrongly applied the Clayton Weatherston provocation for murder law change to my case, and then misdirected the jury to deliberately deny me a fair trial.

 

It is absolutely clear from that sentence “Perhaps, as Mr Lillico submits, the Judge decided that hearing shooting in the area was not something that could amount to provocation.”, that the Court of Appeal judges, like Judge Cameron did before them, have ignored everything I said and produced about the 5-year campaign of harassment and offending against my family by the so-called “victim” Stephen Charles Poynter. Judge Cameron did it to support the corrupt Police line and the Court of Appeal Judges have repeated it in support Judge Cameron’s corrupt behaviour, to preserve the status quo and deny me justice.

 

 

Unannounced, unsuppressed, high-powered gunshots within 100 meters of my home is not as the Court of Appeal Judges so casually repeat as “hearing shooting in the area.” By Christ I’d like to let off the same cannon fire outside their homes while they’re taking tea and cucumber sandwiches on the lawn; see how they like them apples. Did they even bother to glance at Inspector McLeod’s letter to Jill Pettis MP where he states that he has obtained an opinion from Police National Headquarters Legal Section stating that it is unlawful to discharge high-powered firearms in the Paterson Street/Roberts Avenue built-up area?

  This “perhaps” comment, over all others, is the one that most clearly demonstrates what a pathetic argument the Crown, District Court and Appeal Court judges, the police and the psychopath Stephen Poynter rely upon to justify their dangerous game of poking the old Dutch bastard till he bites.

Just like Judge Cameron did with Crown Prosecutor Harry Mallalieu, everything the Crown lawyer Mr Lillico stated in his rebuttal these unabashed Officers of the Court have agreed with.

 

Result

 

[38] For these reasons, the appeal against conviction and sentence is dismissed.

 

The Crown, for obvious tactical reasons, failed to address certain issues such as the Inspector Duncan MacLeod/Jill Pettis MP correspondence that proved that Stephen Poynter’s gunfire was always illegal, the Lance Rowe Court process interference, the Court TV screen use refusal, and the Police “WE NEVER TELL INFMT” policy document etc. etc (all indicators of judicial bias or serious official corruption) in its submissions. The Judges of the Court of Appeal have done the same,  more or less. 

Had I not pointed out and made a big deal of Mr. Lillico’s attempt to alter the Court record in relation to the Judge McElrae ruling, the three Judges of the Court of appeal would probably have unwittingly aided and abetted him in his not so cunning plan to commit a fraud upon the Court of Appeal.

 

YOURS TRULY JACOBUS VAN DER LUBBE

 

________________________________________________________________

IN THE SUPREME COURT OF NEW ZEALAND
SC 112/2014 [2014] NZSC 187

 

 BETWEEN JACOBUS VAN DER LUBBEApplicant
AND THE QUEEN Respondent

 

 Court: McGrath, William Young and Glazebrook JJ
Counsel: Applicant in personM J Lillico for the Respondent
Judgment: 17 December 2014

 

Introduction

[1] After a jury trial in the Whanganui District Court, the applicant, Mr van der Lubbe, was convicted of one count of threatening to cause grievous bodily harm and one count of threatening to kill.1 He was fined $1,000 on each count.2

[2] The Court of Appeal dismissed his appeal against conviction and sentence on 8 October 2014.3 Mr van der Lubbe seeks leave to appeal against the Court of Appeal decision.

 

1 Contrary to the Crimes Act 1961, s 306(1)(a).

2 R v van der Lubbe DC Whanganui CRI-2012-083-402, 29 April 2013 (Sentencing Notes of Judge Cameron).

3 van der Lubbe v R [2014] NZCA 495 (Ellen France P, MacKenzie and Andrews JJ).

 

Background

[3] The object of the threats was Mr van der Lubbe’s neighbour but the threats were made in the course of two telephone conversations with police communicators on the 111 emergency services line and not to the neighbour.

[4] Mr van der Lubbe admitted the telephone calls but sought to rely on provocation and self defence. He explained in evidence that he had made the telephone calls to lay a “paper trail” and that he wanted to be arrested so he could “tell [his] story” in court about the dispute with his neighbour and thereby bring an end to that dispute.

 

Discussion

[5] Mr van der Lubbe essentially seeks to raise the same issues before us as in the Court of Appeal. The issues he wishes to canvass raise no issues of principle and largely concern factual issues. Nothing he has raised suggests that the Court of Appeal’s conclusion on those matters may have been wrong. There is no risk of a miscarriage of justice.

 

Result

[6] The application for leave to appeal is dismissed.

 

Solicitors:

Crown Law Office, Wellington for Respondent

 

 WATCH THIS SPACE!

Add the Crimes Act section where it mentions the word “annoy” and how Cameron has refused to admit his “mistake” to the Govener General and what he has done to try and induce me to drop my appeal for a pardon to the GG.

 

 

One Response

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  1. Jack said, on 15/05/2017 at 6:56 pm

    Feuding neighbours have day in court
    Save
    Wednesday, 13 March 2013
    The New Zealand HeraldSHARE:FacebookTwitterGoogle+Email
    By Aaron van Delden

    “I wanted to be arrested.”

    That was the reason Jacobus van der Lubbe gave for threatening to kill his neighbour while on the phone to a 111 call-taker.

    Van der Lubbe told the Wanganui District Court yesterday he “uttered the ‘kill’ word in the hope all the provocation would stop”.

    “I wanted to be arrested,” he said. “So that I could tell my story in court and the gunshots would be stopped permanently.”

    Van der Lubbe, 62, acknowledged there were a number of things his Paterson St neighbour, Stephen Poynter, did that annoyed him – like keeping a rooster, pigs and rubbish near his property’s boundary – but he said it was Mr Poynter’s use of rifles that really angered and offended him.

    The two charges van der Lubbe has denied – threatening to cause grievous bodily harm and threatening to kill – stem from phone calls he made to 111 in August 2011 to report gunshots.

    In the first call, on August 3, van der Lubbe said someone was shooting a gun to annoy him, and that he would buy his own firearm and disable his neighbour.

    While he was being cross-examined by Crown prosecutor Harry Mallalieu yesterday, van der Lubbe, who is representing himself, said it was not until he threatened to kill Mr Poynter, in a call to 111 on August 23, that “the gunshots stopped and there was no more shit-stirring”.

    Mr Poynter, who took the stand on Monday, said he used rifles either to eradicate pests – wild goats and deer – because they annihilated plants, or to kill livestock.

    Van der Lubbe said he had been bothered by Mr Poynter’s gun use since March 2006, and he ran through a timeline he had compiled of conflicts with his neighbour leading up to the August 2011 threats.

    During this period, the police instructed Mr Poynter to use a lower-powered rifle fitted with a suppressor to reduce the amount of noise it generated.

    Van der Lubbe sought a “no firing” zone within 200m of his house.

    He asked the jury to view him as someone who wanted to protect his family and animals from “an armed and dangerous provocateur”.

    Sergeant Shaun Jones, the officer in charge of the case, said that, in his opinion, anyone making calls such as the ones van der Lubbe made to 111 in August 2011 would be prosecuted.

    He said at least four senior police officers had been involved over several years in attempts to resolve the issues between van der Lubbe and Mr Poynter.

    Van der Lubbe’s wife, Sandra, who was called as a witness by the defence yesterday afternoon, said she had not heard her husband make either threat and was only aware he made one.

    She said the neighbourhood had been “nice and peaceful” before Mr Poynter moved in.

    The trial is expected to wrap up this morning when the Crown, defence and Judge David Cameron make their addresses to the jury before it retires to consider verdicts.


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