Lopas v Police
[2020] NZHC 349
•2 March 2020
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. He was also encouraged to obtain legal advice.
[9] The date of 10 am on 2 March 2020 was set to deal with the two leave applications.
[10] Mr Lopas did not file any affidavits or any leave application. Neither did he seek legal assistance. Instead, he sent a letter to the Registrar dated 18 February 2020 which, amongst other things, expressed his belief that he had an “automatic right to be heard in an appeal”. The letter also suggested that the original complainant, and an employee of his, had fabricated evidence in the original proceedings and lied to the Court. The letter also made allegations of inappropriate behaviour on the part of the Police amounting to what was said to be “bias-cronyism”.
[11] At the hearing on 2 March, Mr Lopas explained the delay in him filing an appeal resulted from the fact he did not obtain a CCTV camera until six months after the conviction and the relevant material captured by the CCTV camera took some time for him to collect.
[12] Mr Lopas claimed that the material showed that on occasions when he or his wife had created some dust exiting his driveway, later that day the complainant or someone associated with him damaged the grass verge outside the complainant’s house. The inference he wanted the Court to draw was that the complainant did this in order to get him into trouble again, and in order to manufacture evidence against him that the complainant could then take to the Police. However, Mr Lopas acknowledged that there was no evidence that the complainant had approached the Police about these incidents. Mr Lopas dismissed this on the basis of what he said was collusion on the part of the Police officers involved. He implied that the complainant would have contacted the Police trying to get him in trouble again but the Police officer who took the complaint would not have made any record of it because he was in collusion with the complainant.
[13] During the course of the hearing, Mr Lopas claimed that the skid mark which had been the subject of video evidence available to the original Court could only have been made by a vehicle going in the opposite direction to that alleged. He said he had not originally noticed this, and it was not pointed to the Judge.
The legal test
[14] The guiding principle in relation to requests to extend time for leave to appeal is whether the grant of such an application is in the interest of justice in a particular case.1 It is for the applicant to provide sufficient information to satisfy the Court that a grant of leave is in the interests of justice.2 In particular, the interest of justice may be ascertained in each case through a balancing test between the wider test interests of society in the finality of decisions against the interest of the individual applicant in having the conviction reviewed.3
[15] The Court of Appeal has indicated that relevant considerations for considering the balancing test would include:4
The strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[16] The approach taken by the Court is that where there is a short and explainable delay, leave is more likely to be granted whereas longer unexplained delays will be less successful.5
Analysis
[17] The delay here is a very lengthy one; the offence involved is at the lower end of the scale (the penalty was a $400 fine, Court costs and a period of disqualification); the period of disqualification has long since expired; there is little merit in the appeal
– effectively what Mr Lopas is inviting the Court to do is to make different factual findings from those made by the Judge; he is also inviting the Court to speculate as to what significance can be drawn from behaviour on the part of the complainant that occurred years after the events in question and more than six months after the conviction and sentence date; effectively what Mr Lopas was inviting the Court to do was to allow the appeal and send the matter back for a rehearing. Given the length of
1 R v Knight (1997) 15 CRNZ 322 (CA) at 336.
2 R v Davis [2007] NZCA 577 at [13].
3 R v Knight above no 1 at 336.
4 At 338.
5 At 338.
time that had elapsed since the offence, this would cause considerable prejudice to the prosecution.
Conclusion
[18] Mr Lopas has not adequately explained the length of delay. The further evidence that he wants the Court to admit is not relevant to the original conviction and does not come close to providing grounds for an appeal.
[19] There is no basis for the granting for the application for leave to call further evidence. Mr Lopas has no idea what evidence Mr Hildyard or the other unidentified proposed witness would actually give as he has not spoken to them. What he really wanted to do was to have an opportunity to cross-examine them. He wants to have a re-run of the original hearing. That is not what the appeal process is about.
Result
[20] The applications for leave to appeal out of time and leave to call further evidence are dismissed.
[21] As Mr Lopas has not been granted leave to appeal, the hearing date allocated to hear the appeal is vacated.
Churchman J
Solicitors:
Crown Solicitor’s Office, Christchurch for Respondent cc: G J Lopas
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