C v Police HC Auckland CRI-2005-404-000426

[2006] NZHC 1616

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-000426

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 December 2006

Appearances: Ms S Abernethy for appellant

Ms K Hogan for respondent

Judgment:      19 December 2006

(ORAL) JUDGMENT OF LANG J

[on application for leave to appeal to Court of Appeal]

Solicitors:

Crown Solicitor, P O Box 2213, Auckland
Counsel:

Ms S Abernethy, P O Box 56-438, Auckland

C V NZ POLICE HC AK CRI-2005-404-000426  19 December 2006

[1]      On 20 October 2006 I dismissed appeals by Ms C   against her conviction in the District Court at Auckland on two charges of confronting a person in a public place, namely Newmarket, knowing that her conduct was likely to reasonably intimidate that person.

[2]      On the same date I allowed an appeal by Ms C   against the sentence of community work that had been imposed in respect of those charges.   I quashed that sentence  because  of  Ms  C  ’s  medical  condition,  and  I  substituted  for  that sentence a fine of $250 on each charge together with Court costs of $130 on each charge.

[3]      Ms C   now seeks leave of this Court to appeal to the Court of Appeal against my decision to dismiss her appeals against sentence.     She does not seek leave to appeal on the issue of conviction.

The grounds advanced

[4]      The principal ground advanced in support of the appeal was that the Judge in the District Court had not made a clear finding as to culpability.   In a general sense, however, this submission cannot be correct.    This is because the Judge concluded her decision in the District Court in the following terms:

[31]      The Court listened to all the evidence given by the defendants and the complainants.     The Court has no doubt that the complainants, both Manwa Wong and Jennifer Paice were extremely intimidated, distressed and afraid by being confronted by the defendants in a small group outside the shop when they tried to leave the business and go to their motor vehicle. They were followed for some 10 minutes, shouted and screamed at by the defendants.   They needed the protection of a security guard and there can be no doubt that this behaviour stepped way beyond acceptable behaviour of a protestor expressing views.      Each defendant, by taking part in this confrontation of the complainants on the street, must have known that their conduct was likely reasonably to intimidate Manwa Wong.   As described in the evidence, a security guard was able to give independent testimony about the event and he himself (though very experienced) was intimidated by the defendants.   Their conduct was very aggressive, and very frightening.

[5]      In my view this paragraph is a clear finding that the prosecution had proved beyond reasonable doubt that Ms C   was part of a group that had gathered around the complainants and had intimidated them.

[6]      The problem that arose in hearing the appeal was that the Judge’s sentencing notes cannot be retrieved.   As a result, I was faced with two options.   The first was to remit the charges to the District Court for Ms C   to be re-sentenced.    That would obviously involve further time and expense for everybody in what is really not a particularly serious matter.   The second option was to endeavour to ascertain the view that the sentencing Judge must have had regarding Ms C  ’s culpability vis a vis her co-offenders.

[7]      I opted for the second option, because I considered that there was sufficient material available to me to ascertain the basis upon which the Judge had sentenced Ms C  .    The sources of material that were available to me were the decision in which the Judge found the charges proved, the sentences imposed on Ms C   and her co-offenders (which were a matter of record) and also a reporting letter sent by the prosecutor to the police following the sentencing hearing.   This was produced to me annexed to a memorandum by the prosecutor who appeared at the hearing.   Also annexed to that memorandum were copies of his handwritten notes taken at the time of sentencing.

[8]      In  this  memorandum  the  prosecutor,  Mr  Woolford,  records  that  Judge

Henwood had this to say about Ms C  :

5Ms C   was sentenced to 80 hours community work in respect of two charges in relation tot he protest on 10 April 2004 … Judge Henwood regarded Ms C   as a principal player and described her behaviour as quite intimidating.

[9]      Although no objection was taken to it at the time that the appeal was heard, Ms Abernethy contends that I ought not to have had regard to this document in reaching my decision.     She makes this submission notwithstanding the fact that there is no outright challenge by Ms C   to the contents of Mr Woolford’s letter. She says merely that she cannot recall the sentencing Judge describing  her as a “principal player”.

[10]     Before considering these particular issues further it is worthwhile recording the basis on which leave can be granted to appeal to the Court of Appeal in circumstances such as these.

Jurisdiction

[11]     A grant of leave to appeal from a decision of this Court to the Court of

Appeal is governed by s 144 of the Summary Proceedings Act 1957 which provides:

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.

…

[12]     Ms Hogan has drawn my attention to the decision of R v Slater [1997] 1

NZLR 211 where the Court said that there are three prerequisites to a grant of leave under s 144(2).   These are:

a)       A question of law must be involved.

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

c)       The Court must be of the opinion that it ought to be so submitted.

[13]     The Court also said at [215]:

Section  144  was  not  intended  to  provide  a  second  tier  of  appeal  from decisions   of   the  District   Court   in   proceedings   under   the   Summary Proceedings Act.    Parliament intended such proceedings to be brought to

finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted.    Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

Decision

Question of law

[14]     In the present case Ms Abernethy submits that there was nothing before this Court upon which it could reliably base its assessment of Ms C  ’s overall culpability.     This is because the sentencing notes which presumably would have provided such a basis are not available.

[15]     I do not accept this submission.    In my view I was entitled to consider the issue of culpability based on such materials as were available to me.    In particular, the manner in which the Judge distinguished between Ms C   and her co-offenders makes it clear that she gave careful consideration to the respective parts that she believed  each  offender  played  in  the  incident  that  gave  rise  to  the  charges. Secondly, the Judge’s decision in relation to liability also makes it clear that she considered that all the offenders were part of a group that intimidated the complainants.

[16]    In those circumstances, and even putting aside the letter written by the prosecutor, it seems to me that there was sufficient material available for me to properly assess the basis upon which the Judge had ascribed culpability to Ms C   and her co-offenders.   I do not consider that any issue of law arises.

General and public importance

[17]     I do not consider that this case raises any particular issue of public or general importance at all.   It relates to the penalty imposed upon Ms C   in respect of two charges laid pursuant to s 21(1)(d) of the Summary Offences Act 1981.    Nothing that has been advanced in support of the appeal today satisfies me that the case has any ramifications at all beyond the case itself.    In particular, there is no issue of

general  or  public  importance  arising  in  relation  to  the  manner  in  which  the sentencing Judge approached her decision or the manner in which it was approached on appeal.

Remission to District Court?

[18]     It was suggested to me today that it would be appropriate for me now to remit the proceeding to the District Court for re-hearing as to sentence.   I decline to do so for two reasons.

[19]     First, I am not satisfied that, even if I wished to avail myself of that course of action, I would have the jurisdiction to do it.   It seems to me that the judgment that I delivered on 20 October 2006 finally disposed of the appeal subject to any rights of appeal to the Court of Appeal.   I do not consider that the issue of the sentence that was imposed on Ms C   can be revisited further.

[20]     Secondly, given the amount of the fine that I imposed on Ms C   and the sentences that were imposed on the other offenders, it seems to me that I adopted a generous stance in relation to Ms C  .    It may well be that if the matter were remitted to the District Court the Judge in that Court would see her culpability as being more in line with that of Ms Rees than that of Ms Gillespie-Gray.

Result

[21]     For these reasons I do not propose to grant leave to appeal to the Court of Appeal.      I  also  decline  to  remit  the  proceeding  to  the  District  Court.      The application for leave to appeal is accordingly dismissed.

Lang J