Johnston v The Queen
[2011] NZCA 70
•14 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA839/2010 [2011] NZCA 70 |
| BETWEEN DANIEL JOHN JOHNSTON |
| AND THE QUEEN |
| Hearing: 14 March 2011 |
| Court: Harrison, Courtney and Clifford JJ |
| Counsel: Applicant in Person |
| Judgment: 14 March 2011 |
ORAL JUDGMENT OF THE COURT
The application for special leave to appeal is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Mr Daniel Johnston applies for special leave to appeal against decisions of the High Court,[1] dismissing his appeal against conviction in the District Court at Waitakere[2] on a summary charge of male assaults female and refusing leave to appeal. He also seeks to appeal against his sentence of six months’ supervision with an associated condition and order. The Crown opposes the application.
[1]Johnston v Police HC Auckland CRI-2010-404-227, 15 September 2010 and 19 November 2010 respectively.
[2]Police v Johnston DC Waitakere CRI-2009-090-10262, 26 April 2010 (Reasons for conviction).
The issue for determination in the District Court resolved itself into a credibility conflict. The complainant and Mr Johnston were married. They had enjoyed a long term relationship. She complained that he struck her while on an alcohol induced bender. She said that Mr Johnston punched her with a closed fist drawing blood. Subsequently she complained to the police. The Judge preferred the complainant’s evidence.
Mr Johnston did not accept his conviction in the District Court. He appealed to the High Court on the basis that the lower court decision was against the weight of evidence. Later he added an appeal against his sentence on the ground that it was unduly harsh. In a lengthy and carefully considered judgment, Justice Andrews dismissed Mr Johnston’s appeal.
Both in the District Court and on the appeal against conviction to the High Court Mr Johnston had been represented by counsel. However, acting for himself he applied to the High Court for leave to appeal to this Court pursuant to s 144(2) of the Summary Proceedings Act 1957. That provision only allows for a right of second appeal if, first, there is a question of law, second, the question ought to be submitted to the Court of Appeal because of its general or public importance or for any other reason and, third, this Court is of the opinion that the question should be submitted.
The essence of Mr Johnston’s application for leave was that Andrews J had failed to consider various pieces of relevant evidence or to note in her judgment that she accepted one of Mr Johnston’s submissions. Again, after hearing from Mr Johnston and the Crown in opposition and reserving her decision, Justice Andrews declined leave.[3] She was satisfied that Mr Johnston was simply seeking to further scrutinise the factual findings made in the District Court and that no questions of law arose.
[3]Johnson v Police HC Auckland CRI-2010-404-227, 19 November 2010.
Mr Johnston challenges that decision. He now applies to this Court for special leave to appeal on the following proposed questions of law: first, the conviction was unreasonable and cannot be supported having regard to all the evidence; second, the judgments of the District Court and the High Court should be set aside because they are erroneous; and third, the District Court and the High Court failed to apply the correct standard of proof in this case.
Having considered these questions and having heard from Mr Johnston today, we are satisfied that he has not identified a question of law relating to his conviction, let alone one which is of such general or public importance that it should be submitted to this Court for determination. We are satisfied that Andrews J’s decision to refuse leave was correct.
In these circumstances we dismiss Mr Johnston’s application for special leave to appeal. However, we wish to express our appreciation for the courtesy shown by Mr Johnston in his submissions this afternoon.
Solicitors:
Crown Law Office, Auckland for Respondent
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