Lopas v Police - [2020] NZHC 349

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-184

[2020] NZHC 349

BETWEEN
GLEN JAMES LOPAS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 March 2020

Counsel:

Appellant in person

C White for Respondent

Judgment:

2 March 2020

JUDGMENT OF CHURCHMAN J

Background

[1] On 29 November 2019, the intended appellant (Mr Lopas) filed a document titled “Notice of appeal out of time” in the High Court.

[2] This document related to a conviction that had been entered against Mr Lopas in the District Court at Christchurch on 28 February 2018. The offence involved had taken place on 16 December 2016 and involved a charge under s 36A(1)(c) of the Land Transport Act 1988 (the Act) relating to the operation of a motor vehicle in a manner that caused the vehicle to undergo sustained loss of traction in contravention of s 22A(3) of the Act.

The law

[3] Section 231 of the Criminal Procedure Act 2011 requires that a notice of appeal, or application for leave to appeal must be filed within 20 working days after

LOPAS v NEW ZEALAND POLICE [2020] NZHC 349 [2 March 2020]

the date of sentence for the conviction appealed against. Mr Lopas was sentenced on the day of his conviction. Therefore, the appeal was nearly two years’ out of time.

[4] Rule 8.5 of the Criminal Procedure Rules 2012 provides that a notice for leave to appeal that is given out of time, it must be treated as if it contained an application for leave to appeal out of time.

[5] Rule 8.4(2)(e) provides that where an appeal or application for leave is out of time, the reasons for seeking an extension of time must be provided.

Further evidence

[6] Mr Lopas also wants, as part of his appeal, to have the Court consider further evidence. The particular evidence relates to footage from CCTV cameras that Mr Lopas installed outside his property some six months after the date of his conviction. The evidence is said to show the complainant or others associated with him harassing Mr Lopas and also making marks on the verge outside the complainant’s property similar to the mark that Mr Lopas was found to have made in relation to the charge upon which he was convicted.

[7] Correspondence filed by Mr Lopas also indicates that he wanted the Court to issue subpoenas against a person who gave evidence for the prosecution in the original hearing and the unidentified owner of a particular motor vehicle that Mr Lopas submitted was relevant.

Prior minute

[8] By a minute dated 17 February 2020, the Court outlined for the benefit of Mr Lopas, who is self-represented, what was required by way of application for leave to appeal out of time and leave to adduce further evidence. Mr Lopas was encouraged to file an affidavit explaining the delay in filing his appeal application and setting out the details of the further evidence he wanted to submit.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lopas v Police

Details

AGLC: Lopas v Police [2020] NZHC 349
Case: [2020] NZHC 349
Decision Date: 2 March 2020

CaseChat Overview and Summary

In this case, the appellant, Glen James Lopas, sought leave to appeal his conviction in the High Court of New Zealand out of time and also sought leave to adduce further evidence. The conviction, entered in the District Court at Christchurch, was for a charge under s 36A(1)(c) of the Land Transport Act 1988, involving the operation of a motor vehicle in a manner that caused it to undergo sustained loss of traction. The legal issues before the Court were whether Mr Lopas could be granted leave to appeal out of time and to adduce further evidence. The Court was required to consider the delay in filing the appeal, the reasons for the delay, the strength of the proposed appeal, the potential prejudice to the Crown, and the relevance of the proposed further evidence.

The Court found that the delay in filing the appeal was significant, with the conviction having been entered nearly two years prior. The Court noted that the offence was at the lower end of the scale, with a penalty of a $400 fine, Court costs, and a period of disqualification that had long since expired. The proposed appeal had little merit, as it sought different factual findings from those made by the Judge. Furthermore, the proposed further evidence, which was to be obtained from CCTV footage installed by Mr Lopas six months after the conviction, was deemed irrelevant to the original conviction and did not provide grounds for an appeal. The Court concluded that the delay was not adequately explained, and the proposed further evidence did not come close to providing grounds for an appeal. Therefore, the applications for leave to appeal out of time and leave to call further evidence were dismissed.

As a result of the dismissal of the applications, the hearing date allocated to hear the appeal was vacated. The Court found that there was no basis for granting the applications, as Mr Lopas had not adequately explained the length of delay, nor had he provided relevant evidence that could support an appeal. The Court emphasised that the appeal process was not about having a re-run of the original hearing, but rather about reviewing the conviction based on the evidence presented in the original proceedings.

Orders