Ghabachi v Police - [2014] NZHC 1379

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-0030 [2014] NZHC 1379

BETWEEN
MOJTABA GHABACHI

Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 June 2014

Appearances:

P T Eastwood for Applicant
K R Muirhead for Respondent

Judgment:

18 June 2014

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 18 June 2014 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Meredith Connell, Crown Solicitor, Auckland

Counsel: P T Eastwood, Auckland

GHABACHI v POLICE [2014] NZHC 1379 [18 June 2014]

[1] The Applicant seeks leave to appeal against conviction and sentence.1 Leave is required because the appeal is out of time.

[2] The Respondent opposes the application and, if an extension of time were to be granted, opposes the appeal.

Background

[3] On 6 April 2011, the Applicant was convicted and sentenced on a charge of careless use of a motor vehicle. The charge arose out of a minor collision on 2 July
2010 in Queen Street, Auckland, between two vehicles. One was driven by the

Applicant and the other by the complainant, a Mr Ling.

[4] The Applicant defended the charge and was represented by counsel, Mr Eastwood (who has appeared for the Applicant on all relevant matters since). The Applicant did not give evidence at the hearing.

[5] The Justices of the Peace who heard the matter convicted the Applicant and ordered him to pay a fine of $200, reparation of $600, and Court costs of $132.89.

[6] On 20 April 2011 (i.e. within time) the Applicant filed a notice of appeal, but against conviction only. The Court was to hear the appeal on 13 July 2011. On
8 July 2011, however, counsel for the Applicant advised the Court that the appeal was abandoned.2 At the hearing on 16 June 2014, counsel confirmed to me that he gave notice of abandonment on the Applicant’s instructions.

[7] On or about 14 January 2014 the Applicant, through his counsel, lodged an application for an extension of time to appeal conviction and sentence.

Discussion

[8] I decline to grant leave to appeal conviction or sentence for the following reasons.

1 Police v Ghabachi DC Auckland CRI-2010-004-17727, 6 April 2011.
2 Email from P Eastwood to the High Court, dated 8 July 2011.

[9] First, the application for leave was filed almost three years out of time. In an affidavit in support of the application sworn 22 January 2014, the Applicant says that his attention in 2011 was taken up by another, more serious, charge. Even if that were so, it could not explain the inordinate delay that has occurred.

[10] Secondly, I accept the Respondent’s submission that the only course open to an appellant who seeks to pursue an appeal that he or she has abandoned, is to seek leave from the Court to withdraw the abandonment. In R v Palmer the Court of Appeal said:3

[13] It is technically possible to withdraw a Notice of Abandonment with leave…

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.

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Details

Case: [2014] NZHC 1379
Decision Date: 18 June 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the applicant, Mojtaba Ghabachi, sought leave to appeal against both his conviction and sentence for careless use of a motor vehicle, which arose from a minor collision in Auckland on 2 July 2010. Ghabachi was convicted on 6 April 2011 and initially filed a notice of appeal against his conviction on 20 April 2011. However, the appeal was subsequently abandoned on 8 July 2011. In January 2014, Ghabachi applied for leave to appeal both the conviction and the sentence, despite having already served the sentence. The New Zealand Police opposed the application and the appeal itself.

The court needed to determine whether Ghabachi's application for leave to appeal was within time and if the abandonment of the initial appeal could be withdrawn. Additionally, the court had to consider whether the appeal against sentence could proceed given that Ghabachi had already complied with the imposed sentence. The court also needed to evaluate if there were any grounds to appeal against the conviction, such as whether the Justices erred in not discharging Ghabachi without conviction.

Justice Peters declined to grant leave to appeal. The application was filed almost three years out of time, and the abandonment of the initial appeal was on instructions, making it a rare event for the court to grant leave to withdraw such abandonment. Furthermore, since Ghabachi had already complied with the sentence, there was no basis for an appeal against sentence. The court did not find any error in the Justices' decision not to discharge Ghabachi without conviction.

The final orders of the court were to decline leave to appeal both the conviction and the sentence.

Orders