M v Police HC Rotorua CRI 2008-463-77

[2008] NZHC 1987

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2008-463-77

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         (on papers) Appearances: Appellant in person

C Macklin for the Respondent

Judgment:      11 December 2008 at 10:00 a.m.

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 11 December 2008 at 10:00 a.m. pursuant to r540(4) of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr F L M  , 7 Aonini Road, Turangi

Mr C Macklin, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

M V NEW ZEALAND POLICE HC ROT CRI 2008-463-77 11 December 2008

[1]      On  3  December  2008  I dismissed  Mr  M  ’s  appeal  for  want  of prosecution. Mr M   has now asked that his appeal be reinstated.

[2]      Mr M  ’s application is in a fax which sets out a number of grounds. Most of those grounds are not relevant to the application for reinstatement.   For example:

•    “Breach of Declaration of Independence 1835”.

•    “Breach of Tiriti o Waitangi 1840”.

•    “Breach 1858 Native Circuits Court Act”.

[3]      The grounds that are relevant are recorded as follows:

•    “All correspondence received from the Court is post dated after the fact”.

•    “I have not been privy to hearing dates etc, so I can respond to this appeal”.

[4]      I will treat Mr M  ’s fax as an application for a rehearing on the grounds that he did not receive notice of the hearing date before 3 December 2008.

[5]      Notice of the date of hearing for the appeal was sent to Mr M   by notice dated 24 November 2008.  Mr M   has sent a copy of the envelope that contained the notice.  The envelope is postmarked 25 November 2008.  In the normal course of post it would have got to Mr M   before the hearing date.

[6]      Mr M   has also sent a copy of the certificate of result of appeal which was sent to him.  The certificate is dated 3 December 2008 and the copy of the envelope to Mr M   containing the certificate is postmarked 4 December

2008.   It was plainly received by Mr M   the following day, 5 December

2008, because Mr M  ’s fax to the Court is dated 5 December 2008.  This would tend to confirm that in the normal course of post the notice of date of hearing

to Mr M   would have got to him on 26 November 2008; that is, the day after it was posted and 7 days before the hearing.

[7]      Mr M   has nevertheless said, in effect, that he did not get notice of the hearing until after the hearing.  The respondent has taken a neutral position on Mr M  ’s application.  There is no affidavit from Mr M   explaining clearly what occurred, and explaining why he got one notice very promptly but not the other.  Also, the grounds of the appeal recorded in the notice of appeal do not disclose any appellate error.   Nevertheless, I am prepared to grant a rehearing on terms.

[8]      The appeal is therefore reinstated.  The hearing of the appeal will proceed on a date to be allocated by the Registrar.  Notice of the new fixture is to be sent to Mr M   by registered post.

[9]      The Court rules require that an appellant file written submissions in support of an appeal.  Mr M   is to file written submissions in support of his appeal. These are to be filed by Friday 13 February 2009.  The submissions should set out clearly the reasons why Mr M   contends that he should not have been convicted and the  reasons why Mr M    contends  that  the  sentence  was wrong.  The submissions are not to exceed 10 pages.  A copy is to be sent to the Crown Solicitor.

[10]     I also direct that a copy of this judgment be sent to Mr M   by registered post.

Peter Woodhouse J