D v Police HC Wellington CRI-2010-485-61

[2010] NZHC 2186

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-61

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 November 2010

Counsel:         K I Jefferies for Appellant

J Murdoch for Respondent

Judgment:      26 November 2010 at 4.30pm

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 4.30pm on the 26th day of November 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This is an application for leave to appeal to the Court of Appeal, under s 144 of  the  Summary  Proceedings  Act  1957,  against  my  judgment  delivered  on

27 August 2010.   The application was filed a few days outside the 21 day time limited fixed by s 144(2), so that an extension of time for filing the application is necessary.   No application for extension was initially made.   In her written submissions, counsel for the respondent noted that leave would be necessary, and an

application was subsequently filed by the appellant.  Counsel for the respondent did

D V NZ POLICE HC WN CRI-2010-485-61  26 November 2010

not advance any argument in opposition to the grant of an extension of time.  The period involved is short, and there is no prejudice to the respondent.  Accordingly I grant an extension of time for filing the application for leave until the date on which it was actually filed.

[2]      Turning to the substantive application for leave, the grounds on which leave is sought are particularised in Mr Jefferies’ submissions in these terms:

Subject to s 144 of the Summary Proceedings Act 1957, the grounds on which leave is sought are as follows:

(i)The  Court  of  Appeal  is  required  to  consider  the  meaning  of “produce” under s 75A of the Land Transport Act 1998.  In order to produce the certificate of compliance, is it sufficient to simply hand up the certificate as an ancillary document or is it necessary for the certificate to be produced as evidence in the ordinary way?

(ii)       This appeal raises the issue of the proper test to be applied in s 130 cases, particularly where there has been no previous disclosure of the document relied on.

(iii)      This is a proper matter to submit to the Court of Appeal as it raises issues of general and public importance to criminal procedure under the  Land  Transport  Act  1998  and  the  admission  of  evidence generally.

[3]      In the District Court, the failure of the prosecution to produce the s 75A certificate was raised by counsel for the appellant after the close of the prosecution case.  The Judge admitted the evidence, over counsel’s objection.  On this aspect, the appeal to this Court raised essentially two issues:

a)        Whether  the  prosecution  should  have  been  allowed  to  adduce evidence after the close of the case;  and

b)        Whether the certificate was properly produced.

[4]      I decided both issues in favour of the respondent.  The application for leave is focused on the second question, which relates to the manner in which the certificate was produced.  I dealt with that issue in para [8] of my judgment.  That addressed the specific point raised by the appellant.  The substance of that was that there had been no  opportunity  to  cross-examine  a  witness  about  the  certificate,  and  that  the

appellant’s right to a fair trial under s 25(a) of the New Zealand Bill of Rights Act

1990 had been breached.   On that specific point, I do not consider that there is a question of law of sufficient general or public importance to justify a grant of leave.

[5]      The proposed grounds of appeal include the question whether s 130 of the Evidence Act 2006 applies and, if so, whether the requirements of that section have been met.  A question as to the potential application of s 64(2) of the Land Transport Act 1998 also arises.  The point now raised as to the proper test to be applied under s 130 is one which was not specifically raised in either the District Court or in this Court.   The  issue  whether  the  Judge  could  properly allow  the  certificate  to  be produced under s130(6), at the point which he did, was not directly raised.  Nor was the related question of whether any possible non-compliance with s 130 might be cured by s 64(2).

[6]      These are potentially questions of law of sufficient general importance to justify a grant of leave.  However, to grant leave in this case would mean that those questions would be addressed for the first time in the Court of Appeal, and that Court would not have the benefit of the views of the Court below.  For these reasons I do not consider that this is an appropriate case in which to grant leave.

[7]      The application for leave is accordingly dismissed.

“A D MacKenzie J”

Solicitors:         Jefferies & Raizis, Wellington, for Appellant

Luke Cunningham & Clere, Wellington, for Respondent