B v R HC Hamilton CRI-2010-419-45

[2010] NZHC 1790

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-45

B

Appellant

v

THE QUEEN

Respondent

Hearing:         On the Papers

Judgment:      1 September 2010

JUDGMENT OF ELLIS J

[On application to reopen Appeal]

This judgment was delivered by me on 1 September 2010 at 10 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Almao Douch, PO Box 19173, Hamilton 3244.

Copy To:      R M B  , 66 Heath Street, St Andrews, Hamilton 3200.

B V R HC HAM CRI-2010-419-45  1 September 2010

[1]      Mr B   was found guilty and convicted in the District Court of one charge of fighting in a public place.  He was fined $250.  He subsequently filed an appeal against both conviction and sentence and the appeal was set down for hearing before me on 6 July 2010.

[2] The basis for Mr B ’s appeal was not clear from the documents he filed and the Crown took the position in the submissions it filed that it should be dismissed on the grounds of insufficient particularity and non-compliance with Practice Note (High Court) [1993] 1 NZLR 512 (a copy of which was provided to Mr B ).

[3]      Mr B   did not attend Court on 6 July and I issued a minute striking out the appeal for want of prosecution and for failure to comply with the Practice Note.

[4]      On 8 July Mr B   brought a note to the Registry in which he sought to have his appeal “re-opened” on the grounds that he had mislaid or lost the notice given to him by the Court which advised him of the hearing date.  The note said that Mr B   had thought that the appeal was to be heard on 17 July.  It referred to a medical problem from which Mr B   is said to suffer.

[5]      In a further minute I then sought a memorandum from the Crown setting out:

a)        Whether jurisdiction to reopen the appeal exists and, if so, the grounds upon which such jurisdiction may be exercised; and

b)        If such jurisdiction exists, the Crown’s position in relation to that.

[6]      The Crown filed a memorandum on 16 July.  It referred me to the Court of Appeal’s decision in R v Smith [2003] 3 NZLR which was concerned with the Court of Appeal’s jurisdiction to reopen an appeal.   However I am of the view that that decision is of limited application in the present case because, as I understand it, the particular jurisdictional issue that arose related to the fact that the Court of Appeal is a creature of statute without the inherent jurisdiction of the High Court.  As well, the

case concerned the reopening of an appeal the original disposition of which had been found by the Privy Council to be invalid.  That is not the case here.

[7]      In my view the relevant approach is set out in Sherlock v Police [1958] NZLR 526 (HC). In that case the appellant had been convicted on

19 September 1957 of breaking and entering and theft.  He filed a notice of appeal against sentence, but on 4 November 1957 that was dismissed on the application of his counsel.  He then applied to the Court of Appeal for leave to appeal to that Court, but such leave was refused on the basis that the Court had no jurisdiction. He then filed in the office of the Magistrates Court a second notice of appeal to the Supreme Court (as it then was) and the Court was therefore required to consider whether, and the basis upon which, the appeal could be reopened.

[8]      F B Adams J began by noting that there was no direct authority on the jurisdiction to entertain successive appeals under the relevant statute, which in that case, as here was the Summary Proceedings Act, s 115.   He noted that there was Court of Appeal authority to the effect that no jurisdiction existed where the first appeal had been heard and determined on its merits: R v Neiling [1944] NZLR 426. There was Australian authority to similar effect and the position in New Zealand has since been reiterated by Hammond J in Richmond v Department of Social Welfare [1997] 3 NZLR 212. But in the present case and in the case before F B Adams J no determination on the merits has occurred.

[9]      F B Adams J then endeavoured to obtain guidance from similar cases arising in the civil jurisdiction but concluded that they were unhelpful.   In the end he adopted the approach in the English authorities, saying:

In R v Pitman (1916) 12 Cr. App. R. 14, the following passage appears in the judgment delivered by Lord Reading L.C.J.: “There is no doubt that this Court has power either to allow the notice of abandonment to be withdrawn or to reopen an appeal which has been dismissed. But that power will only be exercised where there are special circumstances which in the view of the Court justify a departure from the ordinary procedure” (ibid., 14).

In R v Van Dyn (1932) 23 Cr. App. R. 150, in a judgment delivered by Avory J., it was said: “The only cases in which the Court has granted an application such as the present were cases in which notice of abandonment was given under some misapprehension or some mistake of fact” (ibid.,

152).

There is, however, a footnote to the report referring to the case of R v Sloan; R. v. Waddington (1923) 39 T.L.R. 173, and quoting the following statement of Salter J. therein: “It is not desirable or even possible to enunciate in what circumstances such an application will be granted. ‘But there must be special circumstances’” (ibid., 173).

In my respectful opinion, the proper conclusion is that there must be special circumstances,  and  that,  while  usually  it  will  be  misapprehension  or  a mistake of fact that is relied upon as constituting the special circumstances, nevertheless the jurisdiction is not absolutely limited to cases of misapprehension or of mistake of fact.  It seems to me that the practice of the Court of Criminal Appeal in England indicates the practice that should be followed here; and I conclude accordingly that there is jurisdiction, in such a case as the present one, to allow the original appeal to be reopened, though I am more than doubtful about the propriety of a second notice of appeal, having found no trace of such a procedure in England.   I think it is permissible, however, to treat the notice of appeal now before the Court as an application for leave to withdraw the abandonment of the earlier appeal, and shall deal with it accordingly.   In such matters as this, technicalities should not be pressed too far, and to insist on an application in different form might perhaps be incorrect and, in the circumstances of this case, would certainly be a waste of time and paper.

The fact, however that there may be jurisdiction does not necessarily mean that the Court will exercise it in any particular case.  Where it is sought to reopen an abandoned appeal, there must, in my opinion, in accordance with the English decision, be special reasons to justify such a course; and I think this rule must apply whatever form of procedure is adopted.

[10]     I note that Sherlock has been referred to and applied in a number of later cases.[1]

[1] Hitchcock v Police HC Invercargill CRI-2007-425-8, 5 February 2008; Nathan v Police HC Hamilton AP74/02, 4 December 2002; Butterfield v R [1997] 3 NZLR 760 (HC), James v Police HC Christchurch 242/99, 10 February 2000.

[11]     Also relevant in my view is the enactment of the New Zealand Bill of Rights Act 1990 and in particular s 25(h) which reaffirms the right of every New Zealander to appeal to a higher Court against conviction and/or sentence.  In Taito v R (2002)

19 CRNZ 224 (the decision that gave rise to the facts of R v Smith) Lord Steyn authoritatively underlined its significance in these words (at [12]):

It [s 25(h)] is intended to be an effective right of appeal which so far as is reasonably possible will ensure that justice is done in the appeal process. The context is one of access to justice and it calls for what Lord Wilberforce in Minister of Home Affairs v Fisher [1980] AC 319, 328G, described as "a

generous  interpretation  avoiding  what  has  been  called  'the  austerity  of tabulated legalism' ". The substance must match the form.

[12]     Thus there can in my view be no doubt that jurisdiction to re-open exists, provided that special reasons for the exercise of that jurisdiction can be identified.

[13]     The Crown says that no such reasons exist here.  Mr B   has not sought to file sworn evidence as to the circumstances surrounding his failure to attend court on

6 July.  As well, the Crown points out that the dismissal of the appeal was based on Mr B  ’s failure to comply with the Practice Note, a matter that he has taken no steps to rectify.  And lastly, the Crown submits that the appeal has no merit and the sentence imposed was of a comparatively lenient nature ($1000 being the maximum available penalty for an offence under s 7 of the Summary Offences Act).

[14]     In terms of the matters identified in Sherlock as relevant to the exercise of the jurisdiction, it is possible to characterise Mr B  ’s confusion as to hearing dates as a fact of which I was not aware when I dismissed his appeal.  Notwithstanding the absence of an affidavit from him I am prepared to take into account Mr B  ’s explanation and thus I accept that this was not simply a case of Mr B   not bothering to turn up at the allotted time (cf Hitchcock, supra).

[15]     Once it is accepted that I may have been under a material misapprehension as to the reasons for Mr B  ’s non-appearance the question then becomes whether Mr B  ’s failure to comply with the Practice Note and the lack of obvious merit in  the  appeal  (these  two  matters  necessarily  being  related)  nonetheless  militate against reopening his appeal.

[16]     With some misgivings I am of the view that I should permit the appeal to be reopened.  I am acutely conscious of the competing policy concerns.  However in my view s 25(h) requires the Court to tread cautiously in this area.  The reality is that had Mr B   attended Court on 6 July I would not have dismissed his appeal for want of prosecution in terms of the Practice Note without also hearing from him on the merits.  I therefore afford him one further opportunity to be heard on those.

[17]     I direct that the appeal be reopened accordingly.  It is to be given a 2 hour

hearing date at the earliest opportunity.

Rebecca Ellis J