Hawkins v Police HC Auckland CRI 2006-404-267

[2007] NZHC 1607

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-404-267

CRI-2006-404-270

BETWEEN  IVAN  HAWKINS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 February 2007

Appearances: Appellant in person

Joshua Shaw for Respondent

Judgment:      12 February 2007

JUDGMENT OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Respondent

COPY: Ivan Hawkins, C/- Mason Clinic, Private Bag 19986, Avondale

HAWKINS V POLICE HC AK CRI-2006-404-267  12 February 2007

[1]      The appellant, Mr Ivan Kohiri Hawkins, appeals against his convictions in two separate Courts and on different occasions.  First, on 10 April 2003 he entered pleas of guilty to charges of threatening to kill, breach of restraining order and wilful trespass.   On 17 April 2003 Judge Mark Perkins sentenced him to a term of four months imprisonment.

[2]      The Judge’s brief sentencing notes recite as follows:

[2]       The  probation  report  sets  out  a  wealth  of  background  and  the psychiatric report says you are fit to plead.   You do not have a mental disorder.   You are not under a disability and you are not insane, but you require  constant  medication.    As  [defence  counsel]  has  said,  you  are probably one of those people that falls down the cracks, to use the current euphemism.  Your offending is primarily antisocial.  It appears that leniency has been extended to you previously, but the time has now come where there is really no alternative but imprisonment.   I accept [defence counsel’s] submission that it should be the shortest possible time.

[3]      Second, Mr Hawkins appeals against his conviction on a range of charges – common assault; two charges of breach of the Telecommunication Act; assault with a blunt instrument; and assault with a weapon – in the District Court at Whangarei on 20 August 2003.  Again he pleaded guilty.  He was sentenced to a term of five months imprisonment by Judge James Rota on the charges of assault with weapons. On the telephone and assault simpliciter charges he was convicted and discharged.

[4]      On both occasions Mr Hawkins was represented by counsel.

[5]      Mr Hawkins has appealed, or more correctly applied for leave to appeal out of time, against his convictions on a range of grounds which essentially come down to  one  –  his  complaint  that  his  counsel  were  incompetent  or  acted  contrary to instructions.  However, I do not need to consider this issue further.  What is decisive is that the North Shore appeal is nearly three years out of time; the Whangarei appeal is  over  three  years  out  of  time.    An  appellant  seeking  leave  to  appeal  and  a consequent rehearing must discharge a heavy burden in these circumstances.   He must provide a satisfactory factual and legal basis for an argument that he should be granted leave to reverse his pleas, with the ultimate objective of establishing that a miscarriage of justice will result if leave is refused.

[6]      In this case Mr Hawkins’ submissions, both written and oral, do not approach that threshold.  Before me today he has simply said that his counsel failed to follow instructions.  He has not filed an affidavit or affidavits setting out the circumstances. Correspondingly the Crown has been unable to secure an affidavit from each of the counsel,  assuming  that  Mr Hawkins  would  waive  privilege.    Nor  is  there  any explanation for his extraordinary delay in applying for leave.

[7]      In the end there is nothing other than a bare assertion from Mr Hawkins in support of these applications.  I must dismiss them.  In the course of his submissions Mr Hawkins has referred to his tenure at the Mason Clinic since July 2002 and his intention to challenge his detention there.   I record that I have no jurisdiction to consider or determine that issue now.

[8]      Accordingly, both applications are dismissed.

Rhys Harrison J