B v Police HC Auckland CRI 2005-404-295

[2007] NZHC 169

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-295

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         19 March 2007

Counsel:         No appearance by or on behalf of Appellant

A R Longdill for Respondent

Judgment:      19 March 2007

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Auckland
Copy to:

Appellant in person

B V NEW ZEALAND POLICE HC AK CRI 2005-404-295  19 March 2007

[1]      On  30  March  2005,  Mr  B    pleaded  guilty,  in  the  District  Court  at Manukau to charges of wilful damage, being unlawfully in an enclosed yard and furnishing false and misleading information.  On the latter charge he was convicted and discharged.  On the first two he was sentenced to 50 hours community work and ordered to pay reparation in the sum of $150.

[2]      Initially, Mr B   appealed against sentence.  That appeal was heard before Simon France J on 4 July 2005.   The appeal was concerned with whether Judge Gittos had taken adequate account of time spent on remand by Mr B  .  The Judge concluded that it was open to the District Court Judge to impose a modest additional penalty.  The appeal was dismissed for that reason.

[3]      At the hearing in the District Court and on appeal to this Court on sentence, Mr B   was represented by the same counsel.

[4]      After dismissal of the sentence appeal, Mr B   filed an appeal against conviction stating that the convictions were not entered correctly.  That appeal was filed in person and has not been prosecuted.

[5]      For some reason unknown to me or to Ms Longdill, for the Crown, the appeal has not been brought on for hearing until today.

[6]      Mr B   was not present in the courtroom when the appeal was called.  Nor was he present when called in the precincts of the Court.   For that reason, I have proceeded to hear and determine the  appeal in his absence on the basis of Ms Longdill’s written submissions.

[7]      Ms Longdill submits that there is no reason to extend time for an appeal to be brought.  The appeal was filed out of time.  The merits of the appeal do not justify that course.  Only in exceptional circumstances will an appeal against conviction be entertained following a guilty plea.  That is clear from judgments in cases such as R v Stretch [1982] 1 NZLR 225 (CA) and R v Ripia (1984) 1 CRNZ 150 (CA).

Furthermore, no step appears to have been taken to vacate pleas in the District Court, a course that was open under s 75 of the Summary Proceedings Act 1957.

[8]      I agree with Ms Longdill that there is no basis on which to grant leave to appeal out of time.

[9]      The appeal is dismissed, for that reason.

P R Heath J