Kipping v Electrical Workers Registration Board
[2025] NZCA 416
•20 August 2025 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA446/2024 |
| BETWEEN | JOHN BRIAN KIPPING |
| AND | ELECTRICAL WORKERS REGISTRATION BOARD |
| Court: | Mallon, Peters and Grice JJ |
Counsel: | Applicant in person |
Judgment: | 20 August 2025 at 3 pm |
JUDGMENT OF THE COURT
A The application for leave to adduce further evidence is declined.
B The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Grice J)
Introduction
John Kipping seeks leave to bring a second appeal against conviction and sentence on two charges of doing unauthorised prescribed electrical work in breach of the Electricity Act 1992.[1]
[1]Electricity Act 1992, ss 74 and 162 — maximum penalty $50,000 fine.
The charges arose out of Mr Kipping removing heat pumps from two properties without authorisation. He was convicted on the two charges on 11 August 2023 in the District Court at Christchurch.[2] He was found not guilty on a third charge of installing a heat pump when not authorised to do so.[3]
[2]Electrical Workers Registration Board v Kipping [2023] NZDC 16749 [District Court conviction judgment].
[3]At [75].
Mr Kipping was sentenced to a fine of $1,500 in respect of each charge, amounting to a $3,000 fine overall.[4] On appeal, the High Court upheld Mr Kipping’s convictions and reduced his sentence to a $1,125 fine on each charge.[5] No costs were awarded.
[4]Electrical Workers Registration Board v Kipping [2023] NZDC 25036 [District Court sentencing judgment].
[5]Kipping v Electrical Workers Registration Board [2024] NZHC 1557 [High Court judgment].
Mr Kipping applies for leave to adduce further evidence on appeal, in the form of an affidavit.
Proposed grounds of appeal
Mr Kipping’s grounds of appeal filed in relation to the conviction may be summarised as follows:
(a)the lower courts were wrong in finding Mr Kipping guilty on the charges, as the isolator switch on the appliances was turned off, which precludes the basis for the offending; and
(b)procedural defects at trial, including the late witness statements filed by the prosecution and its failure to call two witnesses, meant Mr Kipping did not get a fair trial.
In relation to the sentence appeal, Mr Kipping says a total fine of $2,500 is manifestly excessive.
The respondent opposes both leave being granted and the admission of the affidavit as further evidence.
Further evidence on appeal
Mr Kipping has filed an affidavit dated 23 December 2024 which goes into some detail about previous court cases he has been involved in and their various outcomes. The affidavit also refers to his argument that an exemption applies under the Electricity Act where an appliance is wired in through an isolator, and therefore the work was not “prescribed electrical work” for the purposes of s 74. He suggests that his lawyer, who withdrew on the morning of the hearing, was incompetent.
Mr Kipping further complains of late witness statements filed in the District Court proceeding, and the failure of the prosecution to call two witnesses, one being a registered electrician, and the other an electrical inspector. Mr Kipping intended to rely on cross-examination of their evidence regarding whether the exemption applied when an isolator switch was turned off. He asks for the Court’s advice regarding the period of notice that must be given by the prosecution if it does not intend to call a witness. Mr Kipping suggests that the evidence given did not support the prosecution’s position on the exemptions, and there was no evidence before the Court to enable it to make “pronouncements” on the isolator switch.
The evidence sought to be adduced is neither fresh nor cogent.[6] The evidence about Mr Kipping’s previous court cases has no relevance to the present leave application. The balance of the affidavit is largely in the nature of submissions, rather than evidence. Leave to adduce the further evidence on appeal is declined.
Should leave to appeal be granted?
[6]The court must be satisfied that the evidence is sufficiently fresh (in that it could not with reasonable diligence have been called at trial), credible, and cogent in the sense that it might reasonably have led to a different outcome: Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.
The application for leave is brought under ss 237(1) and 253(1) of the Criminal Procedure Act 2011. This Court must not give leave for a second appeal unless satisfied that the appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred or may occur unless the appeal is heard. In relation to the first limb, the threshold will generally be met where it can be shown that the proposed appeal raises an issue of general principle that has broad application beyond the circumstances of the individual case.[7] For the second limb, the threshold is similarly high, and not every error will give rise to a miscarriage of justice.[8] This Court will be slow to grant leave where to allow the appeal would require it to reverse concurrent findings of fact in the lower courts, particularly where the trial was before a judge alone, as here.[9]
[7]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].
[8]At [38].
[9]R (CA176/2016) v Police [2016] NZCA 403 at [26].
We have determined that leave to bring a second appeal must be declined.
We first deal with the factual errors that Mr Kipping alleges were made by the trial Judge and the High Court Judge. He contends that, because the isolator switch was turned off, the work was not prescribed electrical work. This issue was the subject of evidence before the District Court, which was further assessed on appeal. Tahana J concluded that the evidence at trial supported the finding that “[t]urning an isolator switch off does not amount to switching the heat pumps for the purposes of isolating and earthing”.[10] The Judge noted that Mr Kipping did not call any expert evidence at trial nor on appeal to contest that finding. On that basis, she concluded that the trial Judge did not err in finding that the work was prescribed electrical work.[11]
[10]High Court judgment, above n 5, at [87].
[11]At [89].
Mr Kipping chose to rely on cross-examination of the prosecution’s witnesses. He suggests that he could “provide witness statements from the two missing persons at the original hearing”, as well as from one other electrical inspector “if required”, on the issue of the isolator switch. However, as the High Court Judge pointed out, there is no indication of what evidence those witnesses might have given about the isolator switch, and to suggest it would support Mr Kipping’s arguments is speculative.[12] Furthermore, Mr Kipping refers to an answer from “AI (Copilot)” to the question “[d]oes an isolator switch isolate a circuit?”, which he says supports his position. However, that takes Mr Kipping no further, as a submission relaying an answer given by artificial intelligence, without more, is not reliable evidence.
[12]At [90].
In addition, Mr Kipping asserts that there is no evidence that he carried out the electrical work, as two people were involved in removing the heat pumps. However, the High Court Judge, having assessed the evidence, concluded that it was open to the District Court Judge to make that finding.[13]
[13]At [61], [63] and [65].
Turning to the grounds of appeal based on procedural defects, Mr Kipping has not established any prejudice arising due to the prosecution’s failure to call two of the witnesses. The respondent has explained, as it did to the High Court, the reason it did not call those witnesses (one was unable to contacted and the other had to go overseas urgently), and in any event they were being called as witnesses of fact not as experts. While he was not legally represented at the trial, Mr Kipping had been represented up until that point, including when determining how he would run his defence. He chose not to call expert evidence, and cannot now rely on that as grounds for appeal.
Furthermore, the issue of Mr Kipping’s lack of legal representation at trial was dealt with in the High Court. The matter of representation had not been raised by Mr Kipping at trial. His only concern, when asked by the trial Judge if he was ready to proceed, was regarding the availability of witnesses. He had also spoken to the duty solicitor. The High Court Judge, having reviewed the position, found that lack of legal counsel at trial did not result in an unfair trial for Mr Kipping.[14] Nothing in the material filed in support of the leave application contradicts that conclusion.
[14]At [43]–[50] and [56].
In relation to the prosecution’s late filing of witness statements, Mr Kipping says that the reduction made to his sentence on appeal was insufficient given the excessive delay. The High Court Judge reviewed the orthodox approach to sentencing taken by the trial Judge and the comparator cases considered by him. She found on that basis that the fines were not manifestly excessive.[15] However, a 25 per cent discount was allowed to recognise Mr Kipping’s right to be tried without undue delay under the New Zealand Bill of Rights Act 1990, an issue which had not been before the District Court at trial.[16] The Judge based the discount on the 25 per cent reduction applied in the Supreme Court decision of R v Williams to recognise a delay in bringing the matter to trial, which the Court noted was generous.[17]Other than asserting that the reduction is insufficient, Mr Kipping makes no arguments in support of a higher discount, nor does he point to any error in the Judge’s reasoning.
[15]At [97]–[107].
[16]At [108]–[110].
[17]R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [22].
Mr Kipping says that the fines amount to over 10 per cent of his net income. However, he puts forward no evidence in support of his implicit claim of impecuniosity. It is unclear whether his reference to the percentage of his net income is on the basis of his annual income or otherwise. Therefore we place no weight on this factor.
In conclusion, there is no issue of general or public importance raised. Nor do we see any basis for suggesting that a miscarriage of justice may have occurred or may occur unless the appeal is heard.
Result
The application for leave to adduce further evidence is declined.
The application for leave to bring a second appeal is declined.
Solicitors:
Luke Cunningham & Clere, Wellington for Respondent
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