Application for judicial review of definition of "balance of probabilities" T 2010-0290357 Case: THE QUEEN v SIMON ERU KAIWAI Court

proceeding currenty in: Kaikohe district court 7/19/2010 Dear Sir / Madam, [1] I respectfully ask for the High Court to judicially review the decision of Judge Harvey in respect to his definition of "balance of probabilities". [2] This standard of proof was applicable for a section 9 hearing as I was being charged under the Criminal Procedure (mentally impaired) Act 2003. This reads:

9 Court must be satisfied of defendant's involvement in offence A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
[3] Should the balance of probabilities have weighed in the defendants favor the defendant would have been discharged. [4] There is significant public interest in the fairness of the "balance of probabilities" interpretation as this standard is being used to separate families. It would be most concerning if the interpretation of this meant whatever the police or any other person said with no consideration as to correctness, opportunity for recourse for malicious action or to orally examine. See exhibit A: Hue Hue letter First item to be judicially reviewed: interpretation of balance of probabilities regarding evidence recognised: [5] Judge Harvey interpreted "balance of probabilities" to mean "only what the police statements say". This appears to be in breach of: - bill of rights 1990 s (6), - maxims of equity (law).

Second item to be judicially reviewed: interpretation of "balance of probabilities" regarding both person and act constituting the offence charged [6] Judge Harvey went further to interpret s 9 as requiring only that the defendant was there on the balance of probabilities. Thus neglecting whether the defendant was also the cause of the act in question. This is clearly not interpreted favorably towards the bill of rights 1990 and therefore appears illegal. It is also inconsistent with the supreme court judge white paper on balance of probabilities. Third item to be judicially reviewed: discharge of defendant justified as the charges are unlikely on the balance of probabilities: [7} The defendant was unlikely to have performed the act based on past history: - the defendant had no criminal history or history of violence making these actions unlikely, - no evidence has been provided to prove the crowns accusation of previous violence or illegal action (connecting the electricity) by the defendant, - Constable Hayden Nicol is facing multiple charges of assault in the community, - Constable David Reynolds has a history of resisting police charges with three of such charges in one day of court. - Constable David Reynolds has a growing reputation of anger and violence as witnessed by community during community soccer matches, - the statements from the two constables present contradicted each other, - both police officers have private prosecutions filed against them by the defendant including assault with intent to injure, [8] The defendant was unlikely to have performed the acts based on evidence from witnesses: - that the defendant challenged the correctness of the police statements making them hearsay/inadmissible evidence without oral cross examination, - that between the 2nd and third section 9 hearing the police made new statements which contradicted their earlier statements, - that five (5) of the seven (7) witnesses are in the defendants favor, - there is video evidence with an admission of assault from Constable David Reynolds, - there is video evidence of one of the crown witnesses (Terrence Price) confirming that the defendant got beaten up unnecessarily,

[9] The defendant was unlikely to have performed the act (aggravated assault) based on his right to defend private property held under a claim of right - Private property of the defendants was taken in the raid by Top Energy supported by Constables of NZ Police, - No witness claims that the defendant struck any Constable. [10] The defendant was unlikely to have assaulted a constable so acting with their duty as: - no breach of the public peace had occurred and the incident was at a private residence. - NZ Police are bound to act without prejudice and their actions on the commercial contract for electricity supply were prejudicial, - The household was not stealing electricity. - The household did not owe an overdue debt to the electricity companies at the time. This was claimed as the reason for NZ Police presence constituting culpable ignorance, - that the police had no warrant to be there, [11] Simon-Eru: Kaiwai had a right to trespass the intruders and therefore reasonable force was justified: - the gate was locked, - no attempt had been made to make an appointment despite a trespass sign asking uninvited visitors to call a specified number, - Simon-Eru: Kaiwai asked the intruders to leave and informed them they were trespassing - David Reynolds and Hayden Nicol refused to leave thus warranting reasonable force to be used for their expulsion. - No one present claims Simon-Eru: Kaiwai used unreasonable force. [12] I respectfully ask for you to review and correct this definition in favor of the bill of rights. [13] I respectfully ask for you to discharge the case in alignment with the clear weighting in the defendants favor. [14 Issuing of a writ of prohibition against further prosecution in a district court relating to this matter. Full documentation evidencing the above is available on request to: Simon Kaiwai 1195 Oruru Rd RD2 Kaitaia 09 408 5408

Signed:

Everything in the statement is true to the best of my knowledge and belief, and that I make the statement knowing that it might be admitted as evidence for the purposes of the standard committal or at a committal hearing and that I could be prosecuted for perjury if the statement is known by me to be false and is intended by me to mislead;