Hopper v Police HC Auckland CRI-2011-404-280

[2011] NZHC 2073

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-280

BETWEEN  JEFFREY LLOYD HOPPER Applicant

ANDNEW ZEALAND POLICE Respondent

Judgment:      10 November 2011

JUDGMENT OF BREWER J

SOLICITORS

Meredith Connell (Auckland) for Respondent

(copy to Appellant in person)

HOPPER V POLICE HC AK CRI-2011-404-280 10 November 2011

[1]      By notice of appeal dated 28 July 2011 the applicant appealed a decision of two Justices of the Peace finding proved an infringement notice alleging that he exceeded 80 km per hour on State Highway 17 near Dairy Flat.

[2]      The matter came before me on 17 October 2011.  I found that the Justices of the Peace had not followed proper procedure in making their decision.  Accordingly, I quashed their finding and remitted the case back to the District Court for rehearing.

[3]      The applicant now seeks leave to appeal my judgment to the Court of Appeal.

Applicable law

[4]      Section 144(2) Summary Proceedings Act 1957 governs this application for leave to appeal:

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.

[5]      The task of the Court in considering whether it may grant leave under this provision is therefore restricted to a consideration of whether a question of law exists which is of sufficient significance that it ought to be submitted to the Court of Appeal for decision.   In other words, s 144(2) does not confer a right of general appeal.   The leading case on this point is R v Slater.[1]     This was a case where a decision made by a District Court Judge in a road traffic case had been upheld by the High Court, leave to appeal to the Court of Appeal under s 144(2) was refused, and application for special leave was then made direct to the Court of Appeal pursuant to

[1] R v Slater [1997] 1 NZLR 211 (CA).

s 144(3) Summary Proceedings Act.

[6] The Court of Appeal held:[2]

Under subs (3) this Court can grant ‘special leave’ for an appeal to be heard by this Court if it is of the opinion that the question of law which is 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 for decision.  Thus, there must be: (i) a question of law; (ii) the question must be one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal; and (iii) the Court must be of the opinion that it ought to be so submitted.  It is probably neither necessary nor desirable, however, to break the requirements of the subsection down in this way.   Such an analysis merely serves to highlight the essential elements which must be present before leave to appeal can be granted.  It is sufficient to pose the statutory question: is there a question of law which, by reason of its  general  or  public  importance  or  for  any  other  reason,  ought  to  be submitted to this Court for decision.

[2] Ibid, at 214-215.

[7]      The Court went on to consider the residual discretion and held that although that discretion extends to a right to refuse to grant special leave even though there is a question of law involved and that question is one of general or public importance, it does not give a discretion to grant leave if no question of law arises in the appeal:[3]

[3] Ibid, at 215.

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 of 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.

Proposed grounds of appeal

[8]      The applicant wishes to seek orders from the Court of Appeal as follows:[4]

The respondents and the Courts actions were such that the applicant was denied justice, and still is being denied justice, and that the systemic and prosecutorial abuse should see the only appropriate result being that the final order should favor the applicant in that the prosecution should be stayed, rather than returned to the District Court for retrial.

[4] Application for leave to appeal to the Court of Appeal from the judgment of Justice Timothy

Brewer dated 17 October 2011, at 6.1.

[9]      His grounds are that he should have been permitted to argue the merits of his case in this Court, with the proper result being that the case against him be stayed for abuse of process and breach of the New Zealand Bill of Rights Act 1990.

Decision

[10]     The documents filed in support of the notice of appeal and the clear pleadings in the application for leave to appeal to the Court of Appeal are sufficient for me to determine the application now.   There is no point in calling for submissions or scheduling a hearing.

[11]     The applicant does not, in my judgment, cross the threshold required by the law in order for me to grant leave to appeal to the Court of Appeal.

[12]     The Justices of the Peace, in the absence of the applicant, determined the infringement notice without hearing evidence.  That meant that their finding was a nullity.  Therefore, whether or not the infringement notice was justified was never determined.  My judgment recognised the failure by the Justices of the Peace and I exercised my discretion to remit the case back for a hearing on its merits.   The arguments that the applicant wishes to make about abuse of process and breaches of the New Zealand Bill of Rights Act 1990 should properly be made to a Judge of the District Court at first instance.   Evidence would need to be called and findings of fact made.

[13]     I  do  not  discern  in  this  application  a  question  of  law  which  could  be determined by the Court of Appeal.  If a question of law could be formulated relating to the procedure I adopted before exercising my discretion to remit the case to the District Court then I would not consider it to be 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.

[14]     Accordingly, leave to appeal to the Court of Appeal is declined.

Brewer J