Douglas v R

[2014] NZCA 219

IN THE COURT OF APPEAL OF NEW ZEALAND

CA849/2013
[2014] NZCA 219

BETWEEN	PAUL DOUGLAS Applicant
AND	THE QUEEN Respondent

Hearing:	27 May 2014
Court:	Harrison, Ronald Young and Simon France JJ
Counsel:	Applicant in Person H W Ebersohn for Respondent
Judgment:	3 June 2014 at 2.15 pm

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

1. On 15 May 2007 Paul Douglas was convicted in the Dunedin District Court of assault.  Almost six years later he filed an application in the High Court seeking leave to extend time to bring an appeal against conviction.

2. David Gendall J refused leave.[1]  Mr Douglas then sought leave of the High Court to appeal that decision to this Court.[2] 

   [1]Douglas v New Zealand Police [2013] NZHC 2651.

   [2]Douglas v New Zealand Police [2013] NZHC 3145.

3. The Judge concluded that the matter was not of general or public importance and so it should not be referred to the Court of Appeal.  He therefore refused Mr Douglas’ application for leave to appeal against the refusal to extend time to appeal.

4. Mr Douglas seeks special leave to appeal the refusal to extend time.  Mr Douglas submitted that a combination of s 144(3) of the Summary Proceedings Act 1957 and the Court of Appeal (Criminal) Rules 2001 gave this Court jurisdiction to grant special leave to appeal where the High Court refused leave.  Further, he referred to s 144B which gave the Court of Appeal the same powers as the High Court.  And so he submitted this Court could consider his special leave application.

5. Section 144 of the Summary Proceedings Act 1957 is the relevant provision.  It 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.

   (3) Where the [High Court] refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the [High Court], or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal 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.

6. Pursuant to s 144(1), therefore, this Court may grant special leave to appeal against any determination of the High Court on a question of law arising “in any general appeal”.  The High Court’s decision refusing an extension of time for filing an appeal is not a determination arising in “any general appeal” pursuant to s 144.[3] 

   [3]Taufoou v Department of Labour [1981] 1 NZLR 573 (CA) at 575.

7. This Court recently confirmed that, where a High Court Judge refuses an application for an extension of time, no further steps will be available to the applicant by way of challenge in this Court.[4] 

   [4]O’Bryne v Waimakariri District Council [2012] NZCA 374, [2012] NZAR 848 at [6].

8. We record, therefore, that this Court has no jurisdiction to hear Mr Douglas’ application for special leave to appeal the High Court’s refusal to extend time to appeal.

Result

1. The application for special leave to appeal is dismissed.

Solicitors:
Crown Law, Wellington for Respondent