Burgoyne v Police

[2012] NZHC 1437

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2011-488-43 [2012] NZHC 1437

BETWEEN  ALBERT REECE BURGOYNE Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         (on the papers)

Counsel:         J S Day and Applicant in person

M A Jarman-Taylor for Crown

Judgment:      22 June 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 22 June 2012 at 10:45 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:      Marsden Woods Inskip & Smith, Crown Solicitor, Whangarei: [email protected]

Counsel:       J S Day, Barrister, Whangarei:  [email protected]

Copy for:      A R Burgoyne, 12 Colonel Mould Drive, Mangonui, Far North District 0420

BURGOYNE V POLICE HC WHA CRI-2011-488-43 [22 June 2012]

[1]      The Applicant seeks leave to appeal to the Court of Appeal against a decision

I gave on 17 April 2012.[1]

[1] Summary Proceedings Act 1957, s 144(2).

[2]      The Respondent opposes the application for leave to appeal.

Background

[3]      On 16 June 2011 the Applicant was convicted in the District Court at Kaitaia on two charges, namely:

(a)      that on 22 October 2008, having been warned by a Mr Nathan, an occupier, to stay off the Te Kao school grounds, the appellant wilfully trespassed  on  that  place  within  two  years  of  the  giving  of  the warning;[2] and

(b)that on 22 October 2008 he used a telephone device for the purpose of disturbing by maliciously transmitting the communication of sound with the intention of offending the recipient, a Mr Alan Cammell.[3]

[2] Trespass Act 1980, ss 4(4) and 11(2)(a).

[3] Telecommunications Act 2001, s 112(2)(a).

[4]      The District Court Judge ordered the appellant to come up for sentence if called upon within 12 months.

[5]      On 17 April 2012, I dismissed the Applicant’s appeal against conviction and

sentence.

Jurisdiction

[6]      The relevant part of s 144 of the Summary Proceedings Act 1957 provides as follows:

144     Appeal to Court of Appeal

(1)       Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this  Act  or  against  any  determination  of  the  High  Court  on  a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)       A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one 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.

...

[7]      Two matters which appear from s 144(1) and (2) respectively are that:

(a)      the question of law which the applicant seeks to appeal must have arisen in the general appeal, that is, the appeal which I heard;[4] and

(b)the question of law must be one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal.

[4] Candy v Auckland City Council CA371/02, 25 February 2003 at [14].

[8]      There is no jurisdiction to grant leave unless those criteria are met. [9]          The criteria for granting leave to appeal are not met in this case.

[10]     The questions of law which are said to arise in respect of the charge referred to in [3](a) above is that the trespass notice was served while the Applicant was on

his own land, alternatively that the trespass order had expired.

[11]     These are not questions of law but of fact.  I note also that the Applicant did not appeal to the High Court on the ground that the trespass notice had in fact expired.  In the High Court the appeal in respect of the charge referred to in [3](a) above was advanced solely on the ground that the land in question was Maori land.

[12]     The question of law which is said to arise in respect of the charge referred to [3](b) above is that there was no transcript of the telephone conversation between the Applicant and the other party to the telephone call, namely Mr Alan Cammell.  Nor is this a question of law.

[13]     None of the matters raised are questions of law, let alone questions which by reason of their general or public importance or for any other reason ought to be submitted to the Court of Appeal.

[14]     The application is declined.

..................................................................

M Peters J