Andrews v Police
[2016] NZHC 2231
•21 September 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-000119 [2016] NZHC 2231
BETWEEN RONALD FALCON ANDREWS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 20 September 2016 Appearances:
Appellant Appears In Person
D L Elsmore for RespondentJudgment:
21 September 2016
JUDGMENT OF GENDALL J
Introduction
[1] Mr Ronald Falcon Andrews (Mr Andrews) appeared before me today as a self-represented litigant, on his application for leave to appeal a judgment of Brown J in this Court.1
[2] The proceedings relating to this judgment stem from an incident which occurred on 3 September 2012 while Mr Andrews was driving a RedBus in Christchurch city. Mr Andrews was consequently charged with careless driving. He did not appear in person in the District Court at the summons date, but pleaded guilty by letter received by the Court on 25 September 2012. Based on this letter, on 3
October 2012, Mr Andrews was convicted of careless driving and sentenced to a fine of $300 and Court costs of $132.89.
[3] On 11 March 2014, Mr Andrews, via an email, sought a rehearing. On
13 March 2014, he filed a formal application for rehearing, which was opposed by
1 Andrews v Police [2015] NZHC 211.
ANDREWS v NEW ZEALAND POLICE [2016] NZHC 2231 [21 September 2016]
the Police. The rehearing application was declined by Justices of the Peace on 3
April 2014.
[4] On 3 November 2014, Mr Andrews then filed a notice of appeal against his conviction. Brown J in this Court extended the time for filing this notice of appeal, to allow Mr Andrews to bring his appeal.2 Some time later, on 19 February 2015, in a reasoned decision given in this Court, Brown J dismissed Mr Andrews’ appeal against conviction.
[5] On 10 August 2016, long out of time, Mr Andrews filed in this Court his present application for leave to appeal the 19 February 2015 Brown J judgment to the Court of Appeal.
Jurisdiction – leave to appeal
[6] Section 397 of the Criminal Procedure Act 2011 (the CPA) provides that this proceeding must continue in accordance with the law as it was before its commencement date, namely, when the information for careless driving was laid. This was 24 September 2012. Accordingly, s 144 of the Summary Proceedings Act
1957 (the SPA) governs this application.
[7] Mr Andrews may, with the leave of this Court, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in any general appeal.3 If the High Court refuses leave, the Court of Appeal may grant special leave to appeal.
[8] The High Court may grant leave if, in the Court’s opinion, Mr Andrews’
appeal poses a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.4
2 At [5].
3 Summary Proceedings Act 1957, s 144(1).
4 Section 144(2).
Jurisdiction to entertain appeal against conviction following guilty plea
[9] Despite Mr Andrews’ earlier guilty plea, Brown J accepted there was jurisdiction to entertain this appeal against conviction based on the first of the three broad situations indicating miscarriage of justice.5 His Honour found it conceivable that, notwithstanding his letter to the Court, Mr Andrews may have erroneously formed a view based on the Police interview that a conviction would not be entered against him.6
Leave to make application out of time
[10] Section 144(2) of the SPA provides that a party wishing to appeal to the Court of Appeal under that section shall, within 21 days after the High Court’s determination, or within such further time as the High Court may allow, give notice of his application for leave to appeal.
[11] Almost 18 months has passed between the issue of Brown J’s 19 February
2015 decision and Mr Andrews’ notice seeking leave to appeal to the Court of
Appeal. This period far exceeds the permissible 21 days.
[12] Mr Andrews has made little attempt to explain the reason for this substantial delay. Before me, he stated simply that he was “unaware of the 21 day time limitation”, without providing any explanation as to why a further delay of about
17 months had occurred. Unexplained delay appears to be a recurring theme in this proceeding. Albeit simply by way of comment, I note that this present instance is well short of the 524 days by my calculation that elapsed between Mr Andrews’ original conviction and his application for rehearing. This was, again, without explanation.
[13] And, given what I see as the overall lack of merit in the proposed appeal, I
am satisfied this is not a case where the Court should exercise its discretion to extend the period for giving notice. That effectively is enough to dispose of this application
5 Andrews v Police [2015] NZHC 211 at [9]-[12], citing R v Merrilees [2009] NZCA 59 at [4].
6 At [12].
for leave to appeal, which, must be declined. But, I will nevertheless, go on to
address Mr Andrews’ specific grounds advanced here.
Mr Andrews’ questions of law
[14] In his notice of application for leave to appeal, Mr Andrews applies for leave on the following questions of law:7
(a) miscarriage of justice; (b) obtaining by deception;
(c) the conviction is out of all proportion to the gravity of the offence;
and
(d) escalating financial hardship.
[15] In addition to answering these questions of law, Mr Andrews wishes the
Court of Appeal to:
(a) terminate what he says is his unfair and unlawful conviction; (b) pay compensation of $100,000; and
(c) provide him with “a clean slate”.
Are these appealable questions of law?
Fact versus law
[16] Separating questions of fact and questions of law is often a difficult task, with significant scope for judicial disagreement.8 A pronouncement of Lord Normand's
7 In passing I note also that Mr Andrews has made several errors in completing the s 144 notice.
He mistakenly lists these questions as questions of law in respect of which leave has been granted. He also gives 14 January 2015 as the date on which the High Court granted leave to appeal, despite such leave being the subject of this hearing.
8 Commissioner of Inland Revenue v Walker [1963] NZLR 339 (SC & CA) at 348 per Gresson P.
has been lauded as constituting "almost everything that needs to be said" in regard to appeals which are limited to questions of law:9
In cases where it is competent for a tribunal to make findings in fact which are excluded from review, the appeal court has always jurisdiction to intervene if it appears either that the tribunal has misunderstood the statutory language — because a proper construction of the statutory language is a matter of law — or that the tribunal has made a finding for which there is no evidence or which is inconsistent with the evidence and contradictory of it.
[17] It is settled, then, that an appeal based on the assertion that there had been no evidence to support a finding of fact is a point of law.10 Oversight of a relevant matter, or consideration of an irrelevant matter, also creates a question of law.11
Further, where there is a failure to draw an inference of fact which is the only one reasonably possible on the evidence, then there is an error of law.12 Arguments on questions of fact, on credibility or based upon the sufficiency of evidence are not questions of law.13
No offence was committed
[18] Although not expressly listed as a separate “question of law”, Mr Andrews’ notice of application focuses heavily on the facts of the offending. He challenges Brown J’s comprehension and interpretation of the evidence and advances an alternative explanation of the facts, effectively asserting that he did not commit the offence of careless driving. These being arguments on questions of fact, they are not questions of law capable of founding a second appeal.
[19] Nor could it be said that the Information issued against Mr Andrews for this offending was a nullity, incapable of sustaining a conviction. In Beckhouse v Police, Ronald Young J held in the circumstances prevailing in that case that it was
erroneous in point of law that the appellant had been convicted on Informations
9 Inland Revenue v Fraser [1942] SC 493 at 497 per Lord Normand; cited in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL) at 36 per Lord Radcliffe; adopted in Commissioner of Inland Revenue v Walker, above n 8, at 353 per Gresson P.
10 Commissioner of Inland Revenue v Walker, above n 8, at 353.
11 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]; Vodafone
New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51].
12 Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at 82.
13 Brookers Summary Proceedings (online looseleaf ed) at [SAX107.11]. See also Kós J’s
formulation of the errors creating questions of law in Brown v R [2015] NZCA 325, (2015) 30
FRNZ 471 at [16].
which were nullities.14 In that case, the fact that the appellant had pleaded guilty to offences outlined in the Informations was no impediment to an appeal, as her plea was obtained under an obvious mistake, misunderstanding or misapprehension.15. The convictions were quashed.
[20] The present case however, as I see it, differs significantly from the situation prevailing in Beckhouse. There the amended Informations to which the appellant pleaded guilty did not disclose offences. The amendments had effectively deleted the mens rea from each of the Informations, so the allegations were not crimes. By contrast, the Information laid against Mr Andrews constituted an offence, which he accepted he had committed by entering a written guilty plea.
Miscarriage of justice
[21] This is not a question of law, appealable in itself. A potential miscarriage of justice would warrant this Court entertaining an appeal against conviction following entry of a guilty plea. This is precisely how Brown J approached the first appeal (discussed above at [9]).
Obtaining by deception
[22] Mr Andrews says further that his conviction was unlawful because his guilty plea was obtained by Police deception and lies. He maintains that in this Court before Brown J, everybody clearly heard the constable’s recorded statement that this was “a fine-only penalty”. He says that at no stage of the Police interview was there any mention of a possibility of conviction, a conviction which he contends would prevent him from working in his occupation (bus driver). Following this interview, Mr Andrews contends that he understood a guilty plea would result in a fine only (of about $400), a discount for entering a written guilty plea, and a further discount for having lost his job as a result of what he described as the complainant’s malicious complaint.
[23] Mr Andrews describes the Police as having later resiled from the expectation created during the interview, and as having produced “a litany of lies”. Mr Andrews objected to the Police evidence presented before the Court, which he characterises as “false and unsubstantiated claims”. He says this minor traffic offence should have only attracted a modest traffic fine, not a conviction, which prevents him from working.
[24] This submission, however, is conceptually flawed, as it appears to presume that fines are severable from conviction. The sentence in question may be imposed only upon conviction. It is not an alternative to conviction.
[25] In this regard, I am satisfied that already Mr Andrews has had the benefit of the Court’s doubt. On the first appeal, Brown J held that Mr Andrews “may have formed the erroneous view” that his guilty plea would not result in a conviction.16
Significantly, his Honour did not find that this was due to dubious Police conduct, but resulted from Mr Andrews’ own misunderstanding. The Police officers involved did not deceive Mr Andrews. There is no evidential foundation for such claims.
[26] Mr Andrews’ submission on this matter is a result of his misunderstanding. In light of this, it would perhaps benefit Mr Andrews for the Court to explain the relationship between conviction and penalties.
Conviction is out of all proportion to the gravity of the offence
[27] Essentially, Mr Andrews’ submission on this issue is that Brown J should have granted him a discharge without conviction, and he erred in his assessment of s 107 of the Sentencing Act 2002.
[28] Proper construction of the statutory language is clearly a question of law.17
However, to warrant appellate intervention, s 144 requires the further finding that this question of law is one that ought to be submitted to the Court of Appeal, whether by reason of its general or public importance, or for any other reason.
[29] Section 107 of the Sentencing Act provides:
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[30] Although described in the section heading as “guidance”, this assessment is
mandatory.18 It requires the Court to engage in a three-step process, identifying:19
(a) the gravity of the offence;
(b) the direct and indirect consequences of a conviction; and
(c) whether those consequences are out of all proportion to the gravity of the offence.
[31] Unless the Court is satisfied that the s 107 threshold is met, the discretion to discharge without conviction under s 106 cannot be invoked.20
[32] In his decision, in my view, Brown J correctly applied the three-step test required for s 107.21 His Honour considered that Mr Andrews’ driving was “demonstrably careless”.22 The Judge did not have before him information as to Mr Andrews’ employment history or the process which led to his loss of employment.23
Nor had Mr Andrews adduced any information as to his financial situation. Based on
Mr Andrews’ age, Brown J ascertained that he was in receipt of superannuation.
[33] Ultimately, the Judge concluded that the effects of conviction would not be out of all proportion to the gravity of the offence. This conclusion, I am satisfied, was entirely justified on the evidence before the Court. Mr Andrews had not
introduced evidence which allowed the Judge to ascertain the direct and indirect
18 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
19 At [8]-[12]; R v Blythe [2011] NZCA 190, [2011] 2 NZLR 620 at [14]; Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]; DC (CA47/13) v R [2013] NZCA 255 at [31].
20 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [28].
21 Andrews v Police [2015] NZHC 211 at [40]-[45].
22 At [44].
consequences of a conviction, or whether those consequences would be disproportionate to the offending.
[34] Mr Andrews still has not adduced evidence which might allow a more nuanced assessment of the consequences of his conviction. His notice of application simply reasserts, without more, that the consequences of conviction are out of all proportion to the gravity of the offence. Accordingly, he has failed to show that this question of law is of sufficient general or public importance that it ought to be determined by the Court of Appeal, or that there is any other reason warranting leave to appeal.
Escalating financial hardship
[35] As a result of his conviction and what he says is his subsequent unemployment, Mr Andrews makes several claims. First, he contends he has lost
$100,000 in income, secondly, he says he has been forced to withdraw all his Kiwisaver funds, and, finally, he maintains that as a result of all that has happened, he has been quite unable to service his mortgage.
[36] These are not questions of law amenable to appeal.
[37] Mr Andrews further says his request for termination of his conviction and a clean slate, which would enable him to recommence employment, was not “honoured”. This is said to be unfair and financially destructive.
[38] Leaving aside the issue of whether the Court is required to “honour” an appellant’s request for a particular outcome, or indeed what this might mean, it is difficult to see how such a request amounts to a question of law.
Result
[39] As Mr Andrews has advanced no question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision, leave to appeal here should also be declined.
The remedies Mr Andrews seeks
[40] For completeness, I will turn now to briefly consider the availability of the remedies sought by Mr Andrews here, in addition to his asserted questions of law which I have addressed above.
[41] On an appeal under s 144 to the Court of Appeal, that Court has the same power to adjudicate on the proceeding that the High Court had.24 In the case of an appeal against conviction, the High Court has certain powers. It may confirm the conviction, set it aside, or amend it and re-sentence the offender. In addition, it may deal with the offender in any other way that the Court below could have done on the conviction as so amended.25 Had Mr Andrews established a question of law warranting leave to appeal to the Court of Appeal, and if that Court finally does allow his appeal, his conviction could indeed be set aside. As Mr Andrews has no prior convictions, this would automatically provide him with the sought “clean slate”.
[42] Orders for compensation however, are not within the powers of this Court in the case of appeals against conviction.26 At most, if Mr Andrews were successful before the Court of Appeal, that Court may, subject to the Costs on Criminal Cases Regulations 1987, make such order as to costs as it might think fit.27 An award of costs is not the inevitable outcome of a successful appeal.28 In any event, it would not approach the $100,000 sum Mr Andrews seeks.
Conclusion
[43] For all the reasons I have outlined above, Mr Andrews’ application before me is dismissed. Leave to appeal to the Court of Appeal the 19 February 2015 judgment of Brown J in this Court is declined.
...................................................
Gendall J
24 Summary Proceedings Act 1957, s 144B.
25 Section 121(2).
26 Section 121(2).
27 Costs in Criminal Cases Act 1967, s 8
28 Section 8(2).
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to Appellant
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