Diffin v Police no.2 - [2012] NZHC 2594

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-470-0011 [2012] NZHC 2594

BETWEEN LEONARD GEORGE DIFFIN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 October 2012 (by telephone) Counsel: L G Diffin, in person, Appellant
N G Belton for Respondent

Judgment: 5 October 2012

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 5 October 2012 at 4.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, PO Box 13063, Tauranga
Copy to:
Mr L G Diffin, Appellant

DIFFIN V NEW ZEALAND POLICE HC TAU CRI 2012-470-0011 [5 October 2012]

Introduction

[1] Mr Diffin seeks leave to appeal to the Court of Appeal1 against his conviction on one charge of making an intimate visual recording.2

[2] Initially, after a defended hearing in the District Court at Tauranga, Mr Diffin was found guilty on two such charges and not guilty on two others.3 On appeal to this Court one of those convictions (relating to the filming of a form of intimate physical activity being undertaken between Mr Diffin and his then partner) was set aside.4 Leave to appeal is sought in respect of the remaining conviction, arising out of the filming of an elderly lady’s breasts, albeit substantially covered by clothing.

Jurisdiction

[3] Generally, a person convicted on a summary offence in the District Court is entitled to one appeal. That appeal is brought to this Court. Leave may be given for a second appeal if stringent criteria set out in s 144(2) of the Summary Proceedings Act 1957 are met. That provision states:

144 Appeal to Court of 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.

....

1      Summary Proceedings Act 1957, s 144(2).
2      Crimes Act 1961, ss 216H and 216G..
3      Police v Diffin DC Tauranga CRI 2011-070-2390, 16 February 2012 (Judge Wolff).
4      Diffin v Police [2012] NZHC 2283.

[4] In R v Slater,5 the Court of Appeal considered the extent of the jurisdiction to grant leave. It did so in the context of 144(3), an analogous provision that allows the Court of Appeal to grant special leave to appeal. Delivering the judgment of the Court of Appeal, Thomas J identified three components:6

a) Is there a qualifying question of law?

b)Is the question one which, by reason of its general and public importance or for any other reason, ought to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Diffin v Police no.2

Details

AGLC: Diffin v Police no.2 [2012] NZHC 2594
Case: [2012] NZHC 2594
Decision Date: 5 October 2012

CaseChat Overview and Summary

Leonard George Diffin sought leave to appeal his conviction for making an intimate visual recording to the New Zealand Court of Appeal. Diffin had been found guilty on one charge and not guilty on two others in the District Court at Tauranga. The appeal concerned the filming of an elderly lady's breasts, which were substantially covered by clothing. Diffin argued that the District Court had made factual errors and that the police had manipulated evidence, and he sought to access a memory device to support his claims.

The legal issues the court had to decide were whether there was a qualifying question of law and if it was of general or public importance, and whether the High Court should grant leave for a second appeal. The court examined Diffin's arguments and determined that they did not meet the stringent criteria set out in section 144(2) of the Summary Proceedings Act 1957. The court found that Diffin's arguments were primarily based on factual errors, which were not grounds for a second appeal. The court also considered whether Diffin's counsel's conduct and concerns about police conduct were relevant, but determined they were not appropriate for a second appeal.

The court concluded that Diffin's application for leave to appeal to the Court of Appeal was dismissed. The court explained that a second appeal was not an opportunity to revisit factual findings or to criticise counsel's conduct. The court advised Diffin to seek legal advice on pursuing other processes if he believed there was a substantial miscarriage of justice. The court's decision left Diffin's conviction intact, but noted that appellate courts have an inherent power to revisit decisions in exceptional circumstances.

The final order of the court was that the application for leave to appeal to the Court of Appeal was dismissed. Diffin was advised to seek legal advice on pursuing other processes if he believed there was a substantial miscarriage of justice.

Orders