L v Police HC Auckland CRI 2010-404-76

[2010] NZHC 641

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-0076

L

L

Appellants

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 April 2010

Appearances: K Raftery for the Crown

A G Speed for C L   and E L 

Judgment:      26 April 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 26 April 2010 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 533, Christchurch 8140

Counsel:       C B Cato, PO Box 941, Auckland 1140

A G Speed, PO Box 941, Auckland 1140

L AND ANOR V POLICE HC AK CRI 2010-404-0076   26 April 2010

[1]      The appellants seek leave under s 144 of the Summary Proceedings Act 1957 to appeal against my judgment dated 22 April 2010 to the Court of Appeal.  Section

144 relevantly provides:

144   Appeal to Court of Appeal

(1)   Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)    A party desiring to appeal to the Court of Appeal under this section shall ... give notice of his application ... 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.

...

[2]      The Court of Appeal said in Nottingham v T[1]:

It is well settled that s 144 is not intended to provide a second tier of appeal from decisions of the District Court.   The stringent requirements of s 144 must be satisfied and neither the determination of what comprises a question of law nor the question of whether that point of law raises of question of general or public importance is to be diluted.

[1] Nottingham v T CA216/00 26 March 2001.

[3]      Further, in R v Salter[2] the Court of Appeal observed, that while the Court has a residual discretion to refuse to grant special leave even though there was a question of law involved and that question is one of general or public importance it does not have a discretion to grant leave if no question of law arises in the appeal.   In my opinion, no question of law, let alone one of general and public importance, has been raised by the appellants.

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

[4]      In the present case the grounds on which the application for leave has been made are that:

Legal issues of general and/or public importance arise out of the decision ... concerning the correct approach to granting permanent suppression of name under s 140 of the Criminal Justice Act 1985 including:

(a)   Considering the weight to be given to the acquittal of an accused under s 347 of the Crimes Act 1961;

(b)   The  extent  and  circumstances  if  any,  where  the  public  interest  in acquittals outweighs the accused’s legitimate privacy interests; and

(c)   That Judge Doherty in his decision dated 8 March 2010 exercised his discretion based upon both errors of fact and law and should have granted the appellant’s application for permanent suppression of name.

[5]      The difficulty presented by these grounds of appeal is that the principles applying to the determination of name suppression under s 140 of the Criminal Justice Act are well established and their application is a matter of fact and weight in the individual case.  No question of law arises in that respect.

[6]      More specifically and in terms of the three questions posed in the grounds of appeal:

a)       the cases make it quite clear that the fact that an accused has been acquitted or discharged under s 347 is merely a matter that is to be weighed in the s 140 balance it is not a matter to which a predetermined weight can be attributed and is not a question of law;

b)“the extent and circumstances where the public interest in acquittals outweighs the accused’s legitimate privacy interests” is not a legal question that can be answered in the abstract but rather a question that can only be answered by reference to the particular facts of the particular case and then weighing the interests on that basis;

c)       Whether or not Judge Doherty exercised his discretion correctly is accepted by Mr Speed not to raise a question of law.

[7]      Leave to appeal is therefore declined on the basis that no question of law is raised by the grounds of appeal.

[8]      Mr Speed advised me that he was instructed to apply to the Court of Appeal for special leave if I declined his clients’ application today.  He also asked that he be given sufficient time to do this given his upcoming commitments.   I agree with Mr Raftery that the best course would be for Mr Speed to file any application by the end of the week and then discuss with the Court Registry his other commitments.

[9]      Accordingly the interim orders made by the District Court on 3 July 2009 prohibiting publication of the names, addresses and any identifying particulars of the appellants are to continue until determination by the Court of Appeal of any application for special leave that may be filed and served by the appellants, provided that any application for special leave is filed not later than 4 pm on Friday 30 April

2010, time being of the essence.

Rebecca Ellis J