Mika v Police - [2012] NZHC 2668

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-37 [2012] NZHC 2668

FA'AALU SALLY MIKA
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 12 October 2012

Counsel: J Takas for Appellant
M Grills for Respondent

Judgment: 12 October 2012

(ORAL) JUDGMENT OF LANG J

[on application for leave to appeal out of time against conviction and sentence]

FA'AALU SALLY MIKA V NEW ZEALAND POLICE HC DUN CRI-2012-412-37 [12 October 2012]

[1] Ms Mika faced charges in the District Court of assault (x 2), resisting arrest and disorderly behaviour. She pleaded not guilty to the charges, but after a defended hearing on 29 and 30 August 2007, Judge McMeeken convicted her on all charges.[1]
The Judge subsequently fined her $250 on one of the assault charges and fined her the further sum of $150 on the charge of disorderly behaviour.[2] The Judge ordered Ms Mika to pay Court costs in respect of the other assault charge, and convicted and discharged her on the remaining charge.

[1] New Zealand Police v Mika DC Dunedin CRN 6012017728-7731, 30 August 2007.

[2] Ibid, 1 October 2007.

[2] Ms Mika originally filed an appeal against both conviction and sentence. On or about 12 November 2007, however, she wrote to the Court advising that she wished to abandon her appeal. She has now filed an application for leave to appeal out of time under s 123 of the Summary Proceedings Act 1957. She asks the Court to deal with the appeal, notwithstanding that it relates to Court proceedings that occurred more than five years ago.

Leave to appeal

[3] There is not a great deal of authority regarding the principles to be applied when an appellant applies under s 123 for an order granting leave to appeal out of time. Such authority as exists[3] tends to suggest that the onus is on the applicant to show special reasons or circumstances why the decision and sentence should not stand. The discretion is provided to the Court, however, essentially for the purpose of avoiding a miscarriage of justice. Another issue that may be relevant is whether
the proposed appeal has merit. In a case where, as here, there has been very significant delay, the reasons for the delay should also be explained.

[3] See eg Cleggs Ltd v Departmet of Internal Affairs HC Auckland M1032/84, 5 September 1984 at p

[4] At my direction, Ms Mika filed an affidavit setting out the reasons why she withdrew her original appeal, and why she waited five years to file the present application. In her affidavit, she explains that she has been diagnosed as being a paranoid schizophrenic. She says that she was not diagnosed until July 2007, at
which time she was made subject to a compulsory treatment order. She says that she

terminated the services of her counsel in 2007 prior to the defended hearing because she thought he was linked to a group of people who were harassing her. When she sought to be represented by new…

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 Mika v Police

Details

AGLC: Mika v Police [2012] NZHC 2668
Case: [2012] NZHC 2668
Decision Date: 12 October 2012

CaseChat Overview and Summary

Fa’aalu Sally Mika, the appellant, applied for leave to appeal out of time against her conviction and sentence. Mika faced charges of assault, resisting arrest and disorderly behaviour, which she denied. The District Court found her guilty on all charges and fined her $250 on one of the assault charges, $150 on the disorderly behaviour charge, and ordered her to pay Court costs on the remaining assault charge. Mika abandoned her appeal in 2007, but subsequently filed an application for leave to appeal out of time under s 123 of the Summary Proceedings Act 1957. Mika submitted that she had been diagnosed as a paranoid schizophrenic in July 2007, and that she had not been confident of her ability to represent herself in Court, nor could she find counsel that she trusted. Mika also stated that she had made numerous efforts to draw attention to her plight to various persons in positions of high authority.

The court held that it was appropriate in the present case to grant leave to appeal out of time. The court noted that the issue Mika wished to raise on appeal had significant merit, namely whether her mental state at the time of her first appearance before the Court ought to have brought into play the provisions of the Criminal Procedure (Mentally Impaired) Persons Act 2003. The court found that Mika’s mental state at the time of her first appearance before the Court should have triggered the provisions of the Act, and quashed the convictions and fines imposed on Mika on 1 October 2007. The court held that it was inappropriate to remit the informations to the District Court for rehearing, given that the offending was now historic, at a relatively low level, driven by Mika’s mental disorder, and she had since been subject to treatment and recognised the problem.

Orders