Hopper v The Queen
[2012] NZCA 414
•10 September 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA266/2012 [2012] NZCA 414 |
| BETWEEN JEFFREY LLOYD HOPPER |
| AND THE QUEEN |
| Court: Arnold, Stevens and White JJ |
| Counsel: Applicant in person |
| Judgment: 10 September 2012 at 11 am (On the papers) |
JUDGMENT OF THE COURT
AAn extension of time for filing the application for special leave to appeal is granted.
BThe application for special leave to appeal is declined.
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REASONS OF THE COURT
(Given by Arnold J)
Introduction
Mr Hopper applies under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal against a decision of Brewer J on appeal from the District Court.[1] The application is out of time, but the respondent does not oppose an extension. Accordingly we extend time.
Background
[1] Hopper v Police HC Auckland CRI-2011-404-280, 17 October 2011.
On 2 February 2011, Mr Hopper was issued with an infringement notice for driving a vehicle at 93 km/h in an 80 km/h zone. On 10 March 2011, the Police served him with a reminder notice. As Mr Hopper requested a hearing in respect of the alleged speeding offence, a date for a defended hearing was fixed for 28 June 2011 in the North Shore District Court. Mr Hopper failed to appear on that date, so the Justices of the Peace dealt with the matter in his absence by “re-imposing” the infringement notice fee of $80 along with $30.67 in court costs.
Mr Hopper appealed to the High Court, arguing that the Justices of the Peace should not have proceeded in his absence. The appeal was heard by Brewer J, who decided the appeal on the basis of a “more fundamental matter” identified by the respondent; namely, that the Justices of the Peace had not proceeded by way of formal proof. They had simply re-imposed the infringement fee, effectively finding the case against Mr Hopper proved without hearing any evidence. The respondent accepted that there was a procedural irregularity, so the Judge quashed the Justices’ finding and remitted the case back to the District Court for rehearing.
Mr Hopper considered that, rather than remitting the matter to the District Court, the Judge should have brought the proceedings against him to an end. Accordingly, he applied to the High Court for special leave to appeal to this Court against Brewer J’s decision. The question of law advanced by Mr Hopper was that:
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 favour the applicant in that the prosecution should be stayed, rather than returned to the District Court for retrial.
Mr Hopper’s grounds were that he should have been permitted to argue the merits of his case in the High 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 (NZBORA).
Brewer J declined leave on the basis that there was no question of law raised by the application that could be determined by this Court. His reasons were as follows:
[8] 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 [NZBORA] 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.
The application for special leave to appeal
The proposed question for the Court of Appeal set out in Mr Hopper’s notice of appeal is:
Do the matters of fact relating to how the Courts have dealt with the appellant amount to an abuse of process significant enough to now stay the prosecution?
In his written submissions, Mr Hopper details his complaint that Brewer J did not allow him to adduce evidence and make submissions on the facts and the law relating to the grounds of appeal in the High Court. In Mr Hopper’s submission, that amounted to an abuse of process and breached his right to a fair trial.
The respondent opposes the application for special leave to appeal, submitting that no question of law arises and relying on Ross v R, which involved facts almost identical to the present case.[2] In Ross, the appellant had been issued an infringement notice for speeding and requested a hearing to contest the matter. He advised the Court that he was unable to attend the hearing on the appointed day, but that he continued to deny liability. As in this case, the Justices of the Peace reinstated the infringement notice without requiring formal proof of the commission of the offence. On appeal to the High Court, the applicant submitted that the proceedings against him should be quashed. Mallon J declined to take that course and instead remitted the case to the District Court for rehearing, on the basis that the error was a procedural one not going to whether the applicant had actually committed the offence. The applicant applied for special leave to appeal to this Court. The appeal was dismissed for want of prosecution, but the Court went on to consider the application on its merits. It held that the applicant’s challenge to Mallon J’s decision to remit the matter to the District Court did not give rise to a question of law.
Criteria for granting special leave to appeal
[2] Ross v R [2010] NZCA 530.
The Summary Proceedings Act allows a second appeal to the Court of Appeal in limited circumstances only. In this case, the relevant leave provision is s 144(3), which provides:
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.
As that subsection makes clear, this Court will only grant special leave to appeal if:
(a)the proposed appeal raises a question of law; and
(b)the question of law is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court for decision.
Those criteria are to be strictly applied; s 144 does not provide a second tier of appeals from the District Court.[3]
Discussion
[3] Nottingham v T CA216/00, 26 March 2001 at [13].
As in Ross, the question Mr Hopper seeks to raise on appeal (see [6] above) is one of fact. It does not seek clarification of a point of law, but rather concerns the application of the law to the particular circumstances of Mr Hopper’s case. Further, in this Court Mr Hopper’s allegations of abuse of process and breach of the NZBORA are directed at the conduct of Brewer J, not at that of the Justices of the Peace. Accordingly, even if the question posed by Mr Hopper were a question of law, it would be a question raised for the first time in this Court. As this Court said in Candy v Auckland City Council:[4]
The Act requires that such a second appeal must be on a question of law arising in the general appeal (s 144(1)). It follows that the judgment of the High Court which the party seeks to challenge must have been asked to address the question. It would be contrary to the policy of general finality of the first appeal to allow leave to bring a second appeal raising a new question of law not raised in the High Court.
[4] Candy v Auckland City Council CA371/02, 17 February 2003 at [14].
Finally, even assuming that Mr Hopper had raised a question of law that had been considered by the High Court, it would not have been one that, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision. Mr Hopper’s complaint is, essentially, that Brewer J did not allow him to produce evidence and make substantive submissions on the merits of his case. However, the appeal was on a point of procedure, and the Justices of the Peace in the Court below had not heard any evidence or made any findings of fact. Given that, it would not have been appropriate for Brewer J to hear the relevant evidence and make findings of fact in the first instance in the High Court. The Judge acted properly in exercising his discretion to refer the case back to the District Court. Further, Mr Hopper said in his submissions in reply that his “gripe” was that he has not been given a fair hearing in any court. The remission of the matter back to the District Court will enable the charge against him to be addressed on its merits. Mr Hopper will have the opportunity to raise whatever points he considers relevant.
It follows that the application for special leave to appeal does not raise any question of law that is of sufficient importance to warrant determination by this Court.
Decision
We extend time for filing the application for special leave to appeal but decline the application.
Solicitors:
Crown Law Office, Wellington for Respondent
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