H v Police HC Wellington CRI-2007-485-155

[2008] NZHC 526

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-155

H

Applicant

v

NZ POLICE

Respondent

Hearing:         15 April 2008

Counsel:         R M Gould for Applicant

C A Patterson for Respondent

Judgment:      16 April 2008

RESERVED JUDGMENT OF GENDALL J

[1]      This is an application for leave to appeal to the Court of Appeal pursuant to s 144 of the Summary Proceedings Act 1957.

[2]      Either party may with leave of the High Court appeal to the Court of Appeal against any determination of this Court on a question of law arising in any general appeal.

[3]      The applicant was convicted following a defended hearing in the District

Court at Wellington of an offence against s 21(1)(b) of the Summary Offences Act

1981, of following a woman knowing that his conduct was likely to cause her

H V NZ POLICE HC WN CRI-2007-485-155  16 April 2008

reasonably to be frightened, and of being found in an enclosed yard.   He sought discharges without conviction.   Judge S M Harrop, who heard the defended case, declined  to  discharge  without  conviction  and  the  appellant  was  convicted  and ordered him to come up for sentence if called upon within six months.  The applicant appealed against that “sentence” or outcome to this Court.

[4]      In a reserved judgment delivered on 18 March 2008, I dismissed the appeal. In respect of the charge of being in an enclosed yard, I discharged the appellant without conviction, because it really was part and parcel of the substantive offence and because, as the judgment said, it was proper that he be convicted in respect of one offence but not two.

[5]      The applicant seeks leave to appeal on the stated basis that:

•   “there  is  a  perception  of  inconsistency  and  uncertainty  in  both  the

District Court and the High Court which needs to be resolved;”

and

•   “was s 107 of the Sentencing Act 2002 intended to erode the discretion inherent in s 106 of the Act, or, when read with its headnote and in the context of the Act as a whole does it codify the law as stated in Fisheries Inspector v Turner [1978] NZLR 233 [sic [1978] 2 NZLR 233].”

[6]      Neither of those points were argued, or advanced, on the appeal to this Court.

[7]      The Court does not have jurisdiction to grant leave to appeal if no question of law arises.  The Court might in certain circumstances decide that a question of law not itself of general or public importance, nevertheless ought to be submitted to the Court of Appeal for decision because of the words “or for any other reason”.  But those words go to the reasons for submitting the question of law to the Court of Appeal for decision, and do not enable the Court to dispense the requirement that there must be a question of law (R v Slater (1997) 1 NZLR 211). As Thomas J said (at p 215) when delivering the judgment of the Court in that case:

“While this Court will, of course, set its mind against the perpetuation of an injustice, the structure provided by Parliament for the resolution of appeals from the District Court pursuant to the Summary Proceedings Act, and the clear words which it has adopted to implement that structure, cannot be disregarded.

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 or 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.”

[8]      Judge Harrop’s decision declining to discharge without conviction applied well settled principles which this Court upheld and applied.

[9]      In Waitakarei City Council v Hertzke (CA 243/96, 5 December 1996) the Court of Appeal emphasised that special leave to appeal can be granted only if the Court is of the opinion that the question of law involved is one which by reason of its general or public importance, or for other reasons, ought to be submitted to that Court for decision.  There must always be a question of law, which rarely will arise in sentence appeals.  The Court of Appeal said:

“Only in rare cases will a sentencing matter raise a question of law of such importance as to justify a further appeal to this Court ….  One case where leave  was  given  to  appeal  on  a  sentencing  matter  was  R  v  McPhee (unreported 20 July 1981, CA 38/81); leave was granted because the High Court Judge and counsel had overlooked the appropriate maximum sentence;

…. [and] the Court considered that the Judge’s misapprehension about the maximum sentence was a material mistake of law, raising a question of law sufficient to justify the grant of special leave to appeal.”

[10]     In the present case, no question of law, whether by reason of general or public importance or any other reason, requires to be considered by the Court of Appeal and the decision on appeal (and argued only at that basis) was simply that the District Court judge had correctly exercised his discretion in declining to discharge the applicant without conviction.

[11]     I do not agree that a “perception” of inconsistency or uncertainty needs to be resolved,  or  is  a  question  of  law  arising from  the  appeal.    Nor  does  counsel’s suggestion that a question exists as to whether in enacting s 107 Parliament intended to “alter the common law”.  Section 107 is simply a “Guidance for discharge without conviction”.  Whether it simply codified the “common law” or not was not argued on the appeal, and is not a question of law arising out of the appeal which, whether by reason of general or public importance or any other reason which requires to be

considered by the Court of Appeal.  The appeal decision was simply that the District Court Judge had correctly exercised his discretion in declining to discharge without conviction on the lead charge,  and this  Court  came  to  the  same  view  that  any consequences to the appellant (such as they were), were not out of all proportion to the gravity of the offence.

[12]     There is no question of law that by reason of general or public importance (or for any other reason) ought to be submitted to the Court of Appeal.

[13]     Leave to appeal is declined.

“J W Gendall J”

Solicitors:

Rennie Gould, Wellington

Luke, Cunningham & Clere, Wellington