M v Police HC Hamilton CRI-2006-419-90

[2007] NZHC 1674

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2006-419-90

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 February 2007

Appearances: Appellant in person

Mr J Mackie for Respondent

Judgment:      27 February 2007 at 3 pm

JUDGMENT OF LANG J

[on application for leave to appeal to Court of Appeal]

This judgment was delivered by me on 27 February 2007 at 3 pm, pursuant to Rule

540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Crown Solicitor, Hamilton
Copy to:

S M  , 232 Mangatea Road, R D 1, Te Kuiti

M V NZ POLICE HC HAM CRI-2006-419-90  27 February 2007

[1]      On 20 June 2006 Mr M   was convicted in the District Court at Te Kuiti on a charge laid under s 48 of the Arms Act 1983 alleging that he discharged a fire gun, air gun, pistol or restricted weapon in or near a dwellinghouse or public place.   Mr M   was ordered  by the  District  Court  to  pay reparation of $143.75,  witness expenses of $100 and Court costs of $130.    He was also required to enter into a

$500 bond for two years to keep the peace with all of the residents in the road in which he lives.

[2]      Mr M   appealed against his conviction and sentence, but in a judgment delivered on 21 November 2006 Stevens J dismissed both appeals.   Mr M   now seeks the leave of this Court to appeal to the Court of Appeal against that decision.

Factual background

[3]      The factual background was set out fully by Stevens J in his judgment and I

can do no better than set it out in full:

[9]       The appellant’s neighbour Mr Johnson, having borrowed a bull from another neighbour, needed to return it to that neighbour who lived some distance  away.    This  required  Mr  Johnson  to  move  the  bull  past  the appellant’s property on 26 November 2005.  In order to facilitate the return of the bull, he arranged for the bull to be accompanied by two cows and their two  calves.     This  was  seen  by  the  learned  District  Court  Judge  as “reasonably standard farming practice”.   But unfortunately, the move was not as well planned as it might have been by Mr Johnson, particularly given that the distance to the neighbours’ property was about two miles.

[10]      Somewhat unwisely, Mr Johnson let the bull out of the paddock and onto the roadway without taking the precaution of ensuring that he had a dog and/or his motorbike on hand so that he could keep proper control of the bull, and presumably, the accompanying cows.  Having realised the flaws in his  planning,  Mr Johnson  abandoned  the  stock  briefly,   leaving  them unattended on the roadway whilst he went to retrieve his dog and/or his motorbike.

[11]      As  is  their  natural  instinct,  the  bull,  two  cows  and  two  calves wandered  onto  a  nearby  property  which  happened  to  be  that  of  the appellant’s mother.  Upon his return to the scene with his dog, Mr Johnson was not prepared to go onto the property to retrieve the animals because of

the previous history between him and the appellant.   He therefore sent his dog on to Mrs M  ’s property to round the animals up, a move which the District Court Judge found to be “again a reasonable farming practice”.  Into this reasonably controlled situation arrived another neighbour, Mr Albert Otene,  who  jumped  over  the  fence  ostensibly  to  lend  a  hand.     The combination of Mr Otene, the dog, the bull, and the cows, created some sort of confused and noisy scenario that attracted the attention of the Marshes (mother and appellant).  Indeed, it disturbed them from their breakfast.

[12]     The appellant and his mother came outside.   She was described as “stubborn and brave”.  She had a stick with her and she was about to use it to deal to the animals.  But the appellant instructed her to go inside because he perceived  she  could  have  been  in  some  danger.    She  went  inside  and remained there.

[13]      When the appellant came out of the house the animals were already out of control.  The appellant unwisely was carrying an airgun.  This airgun was found by the learned District Court Judge to have been pointed in the direction of Mr Johnson.  The appellant then fired a shot from the airgun into the bull.  At that point, Mr Johnson was found by the District Court Judge to be in the firing line of the appellant as the shot was fired.  It was also found that  in  doing  so,  the appellant  endangered  the  neighbour.    The  learned District Court Judge held there was, in all the circumstances, no reasonable excuse for discharging the airgun in the manner in which the appellant had done.  Accordingly, the learned District Court Judge found the charge under s  48  of  the  Act  proven  beyond  reasonable  doubt.    The  appellant  was convicted and sentenced.

[4]      With that background in mind it is necessary to consider the jurisdiction that this Court has to grant leave in circumstances such as the present.

Jurisdiction

[5]      A grant of leave to appeal from a decision of this Court to the Court of

Appeal is governed by s 144 of the Summary Proceedings Act 1957 which 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, within 21 days after the determination of the [High Court], or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by

the rules of that Court, 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.

…

[6]      Mr Mackie has drawn my attention to the decision of R v Slater [1997] 1

NZLR 211, in which the Court of Appeal confirmed (at 215) that there are three prerequisites to a grant of leave under s 144(2).   These are:

a)       A question of law must be involved.

b)       The question must be one which, by reasons of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal.

c)       The Court must be of the opinion that it ought to be so submitted.

[7]      The Court also said (at 215):

Section  144  was  not  intended  to  provide  a  second  tier  of  appeal  from decisions   of   the  District   Court   in   proceedings   under   the   Summary Proceedings Act.    Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted.    Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

Decision

[8]      It is axiomatic that an identifiable question of law must form the basis of any appeal to the Court of Appeal.   That question must also be one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal.

[9]      During the hearing before me Mr M   reviewed extensively the evidence that was given in the District Court.   He was assisted in this by a powerpoint display and by a digital presentation depicting his property through 360 degrees.    Whilst

these were impressive, and also extremely helpful in enabling me to understand the physical layout of the property, they were not before either the District Court or Stevens J.   They therefore fall within the category of new evidence.

[10]     Even assuming that they meet the criteria for the admission of new evidence (when they clearly do not), the photographs do not assist Mr M   in relation to the present application.     He used them to  emphasise the primary argument that  he proposes to raise before the Court of Appeal.   This is to the effect that the Judge in the District Court could not reasonably have concluded that Mr Johnson was in the line of fire when Mr M   discharged his airgun.   That, however, was a finding of fact  that  Stevens  J  expressly  held  (at  [29]  and  [30])  to  be  open  to  the  Judge. Whether or not Mr Johnson was in the line of fire is obviously a matter of fact and not a question of law.   As such, it cannot form the basis of any appeal to the Court of Appeal.

[11]     Viewed overall, Mr M  ’s submissions, whilst comprehensive in relation to factual issues, did not identify any question of law, let alone one of general or public importance.

[12]     Moreover, some of the matters that Mr M   raised before me do not appear to  have  been  raised  during  the  hearing  before  Stevens  J.       These  include  an allegation that the complainant, Mr Johnson, was in breach of a bylaw at the time of the incident that led to the charge.    Mr M   also maintained that several of the witnesses  had  committed  perjury,  when  he  had  not  pursued  that  ground  in  the original appeal notwithstanding the fact that it was contained in his notice of appeal.

[13]     Although a new ground of appeal may in some circumstances justify the granting leave to appeal, I consider that Mr M   had ample opportunity to pursue all of these matters in the hearing before Stevens J.   I do not consider that he ought now to be given the opportunity to raise them for the first time before the Court of Appeal.

[14]     I bear in mind the admonition of the Court of Appeal in Slater (supra) that s 144 was not intended to provide a second tier of general appeal from decisions of

the District Court in proceedings under the Summary Proceedings Act 1957.   In the present case, in which the only grounds advanced relate to the findings of fact made in the District Court, the requirements of s 144 are not met.    For that reason the application for leave to appeal must be dismissed.

Lang J