L v Police HC Auckland CRI 2003-404-229

[2007] NZHC 598

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2003-404-229

BETWEEN  L

Appellant

ANDPOLICE Respondent

Hearing:         3 July 2007

Appearances: P J L   in Person

N Flanagan for the Respondent

Judgment:      3 July 2007

ORAL JUDGMENT OF POTTER J

on application for leave to appeal

Solicitors:           Crown Solicitor, P.O. Box 2213, Auckland

Copy to:            P J L  , 6 Tyburnia Avenue, Mt Roskill, Auckland

L V POLICE HC AK CRI 2003-404-229  3 July 2007

[1]      L   has filed a notice of application for leave to appeal.  The notice of application refers to the judgment of this Court of 7 November 2003 delivered by me.  That judgment dismissed an application by Mr L   for an order that he be permitted to vacate his guilty plea entered in the District Court on 14

February 2001 to a charge of common assault.

[2]      The application filed by Mr L   refers to Part 13 of the Crimes Act 1961 and is addressed to the Registrar of the Court of Appeal.  Clearly the application is not in the correct form.   Section 144(1) of the Summary Proceedings Act 1957 provides for an appeal to the Court of Appeal with the leave of the High Court by either party against any determination of the High Court on any case stated (which does not apply in this situation) or against any determination of the High Court on a question of law which raises a matter of general and public importance.

[3]      The Crown, while acknowledging that the notice of application for leave to appeal filed by Mr L   is incorrect, accepts that this Court should treat the application as properly made so that it may be heard and determined today.

[4]      Section 144(2) requires any notice of application for leave to appeal to be given within 21 days of the High Court determination.  I have explained today to Mr L  ,   and   I   believe   he   understands,   that   his   application   is   consequently considerably out of time.  It is nearly four years since the judgment of this Court was given on 7 November 2003.  Under s 144(2) the Court may allow further time for an application to be made.   In order that the matter may be dealt with today, I grant leave for the application to be brought out of time, but the lapse of time is a matter which is relevant to the determination I make.

[5]      Mr L   in his notice of application dated 2 February 2007 sets out the matters which he believes are relevant to the application.  In submissions today he identified the two matters upon which his application is principally based as being:

a)        The incorrect method of his arrest on 19 December 2000;

b)       That he was made sterile by his former wife. He also alleges insurance fraud by his wife.

[6]      When asked to identify the question of law which would bring his application within s 144(1) of the Summary Proceedings Act, Mr L   was unable to identify any question of law.  He simply stated he considered that in the circumstances of his case there had been a miscarriage of justice and it was a matter of general and public importance that the facts of his case be made known.

[7]      Mr Flanagan for the Crown noted that the application was nearly four years out of time and submitted there was no question of law which would entitle this Court to grant leave to appeal as sought by Mr L  .  He submitted that despite the lateness of the application and the incorrect form in which it was brought it was in the interests of the Court and also of Mr L   that the matter be heard and determined today.  He submitted, however, that the application must fail.

[8]      The  Crown  is  in  my view,  undoubtedly  correct  in  its  submissions.    Mr L  ’s application for leave to appeal must fail.  In the first place it is considerably out of time.  If a litigant wishes to exercise rights of appeal given to him by law, he must proceed expeditiously and within the time limits provided by the statute. Secondly, there is no question of law which would give jurisdiction to this Court pursuant to s 144(1) of the Summary Proceedings Act to grant leave to appeal.  The matters on which Mr L   relies in support of his application are peculiar to his case and do not constitute any issue which could in any way be regarded as of general or public importance.  The application must therefore be dismissed.

[9]      I will simply add as a rider that Mr L   has been engaged in this matter for many years.  It dates back to December 2000.  It is well past the point where he must move on.  Continuing to mull over the traces will not progress matters from the point of view of Mr L   or anyone else.  Mr L   should treat the issues as now finally determined and exhausted.