B v Police HC Christchurch CRI 2006-409-31

[2006] NZHC 417

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-000031

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 April 2006

Appearances: Appellant appears in person

K T Dalziel for Respondent

Judgment:      27 April 2006

JUDGMENT OF HON JUSTICE JOHN HANSEN

The appeals are dismissed.

[1]      The appellant, Mr B  , appeals a number of  convictions. They fall into five groups.

a)        Two breaches of a protection order where the appellant was convicted in the Westport District Court on 23 November 2001.  He was fined

$600 with court costs and witnesses’ expenses.

B V POLICE HC CHCH CRI 2006-409-000031  27 April 2006

b)Two breaches of a protection order and two charges of misuse of a telephone where the appellant was convicted in the Ashburton District Court on 17 December 2001.  He was ordered to come up for sentence if called upon within nine months.

c)        Breach of a protection order in the Ashburton District Court on 18

March 2002.  The appellant was convicted and discharged.

d)Two breaches of a protection order where the appellant was convicted in the Christchurch District Court on 18 March 2003.  The appellant was placed on supervision for 12 months with conditions.

e)       On 12 August 2005 he was convicted in the Christchurch District Court on one breach of a protection order and sentenced to 60 hours community work and nine months supervision.

[2]      The notice of appeal was filed on 15 February 2006.  It follows that all of the appeals are out of time, all but the last for in excess of two years.

[3]      In  relation  to  those  matters  where  the  appellant  has  pleaded  guilty,  he maintains he was compelled to confess his guilt.  However, the major thrust of his appeals appear to be a challenge to the necessity or validity of the original protection order and the consequent convictions are invalid as a result of this.

[4]      The appellant clearly holds a sincere view that he has been the victim of a concerted effort of conspiracy against him on behalf of his ex-partner and her family. He is aggrieved about the lack of contact with his daughters.

[5]      He maintains that notices of appeal within time were lodged in August 2003, but there is a complete absence of documentation to support this view.

[6]      It is apparent that over the years the appellant has consulted a large number of lawyers.  He is obviously concerned about the lack of access to his daughters and consequential matters arising from this.

[7]      Under s 116 of the Summary Proceedings Act 1957 the appellant had 28 days after having been sentenced or otherwise dealt with to file a notice in writing of the appeal and the grounds thereof.

[8]      In this case there has been considerable delay.   It is also apparent that the appellant was aware as long ago as 2003 of the need to apply to the High Court to extend time.   That can be seen by references to letters contained in the bundle presented to the Court at pages 24, 25, 26 and 30.  Those letters date from 20 August

2003 through to 30 June 2004.  Notwithstanding that the appellant took no steps.

[9]      In relation to the more recent conviction, it is quite clear the appellant was by then fully aware of the need to lodge an appeal within 28 days, and failing that to apply for leave to extend time.   Again, despite this knowledge, the appellant has failed to do so.

[10]     There is no explanation for the delay.  However, in the course of the hearing the appellant submitted that he had done his best in the circumstances.

[11]     Even if this application was treated as an application to extend time, it is confronted by significant difficulties.

[12]     In Police v Hill (1990) 6 CRNZ 280 Tipping J held at 281:

… the ultimate question on any such application must be whether it is in the interests of justice to extend time. The following matters will generally need to be considered in determining that ultimate question:

(1)       Whether the failure to file the necessary papers within  time  has arisen in circumstances which ought reasonably to be excused.

(2)Whether the proposed respondent has suffered any prejudice by the delay, being prejudice of a kind other than what is inherent in the extension of time itself.

(3)Whether the proposed appeal has sufficient prima facie merit and in the case of an appeal on a point of law by an informant sufficient prima  facie  utility  and  justice  to  warrant  the  extension  of  time sought.

(4)Such other matters as may bear on the exercise of the discretion in the particular case.

[13]     In this case there is no justifiable excuse advanced for the delay in filing this appeal.  That is particularly so in circumstances where the appellant has been aware since 2003 of the 28 day time period, and the need to apply for an extension of time if he is outside of it.

[14]     Furthermore, while I have every sympathy for the predicament in which the appellant finds himself, the essential thrust of the appeal is his contention that the original protection orders were invalidly made.  With respect, that is something that must  be  determined  on  an  appeal  from  the  Family  Court  in  relation  to  those protection orders, and not in these criminal proceedings.

[15]     The delay in this case is too great to contemplate granting an extension.  The appellant was aware of the time limitations.  The interests of justice would not be met by extending time further.

[16]     Accordingly, the appeals are dismissed.

Solicitors:

Raymond Donnelly, Christchurch for Respondent

CC:

Judge McAloon

The Appellant