Mitchell v The Queen - [2004] NZCA 195

IN THE COURT OF APPEAL OF NEW ZEALAND
CA68/04
THE QUEEN
v
ALFRED JAMES MITCHELL
Hearing:16 August 2004

Coram:McGrath J
Hammond J
Chambers J
Appearances: Applicant in person

A M Powell for Crown

Judgment:23 August 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction
[1]       In September 2003 Mr Mitchell, the applicant, was convicted in the District Court at Whangarei on three charges brought pursuant to the Land Transport Act 1998: failing to produce a driver’s licence when required to do so by a police officer; using an unlicensed motor vehicle; and operating a vehicle on a road when it was not displaying current evidence of a vehicle inspection. Subsequently, Mr Mitchell was fined and ordered to pay court costs on each charge.
[2]       Mr Mitchell then appealed to the High Court against his conviction, on essentially two grounds: that the convictions had not been satisfactorily proved; and the trial court had no jurisdiction over him with respect to these informations.
[3]       The appeal was dismissed by Gendall J, in a considered judgment delivered on 28 November 2003.
[4]       Mr Mitchell then sought leave to appeal to this Court, under s 144 of the Summary Proceedings Act 1957. By a judgment delivered on 19 February 2004 Gendall J dismissed that application.
[5]       Mr Mitchell now seeks special leave, pursuant to s 144(3) of the Summary Proceedings Act 1957, to appeal to this Court. He seeks to advance precisely the same two heads of appeal as were put to the High Court.
The law relating to second appeals
[6]       Under s 144(3) leave may be granted only if this Court considers that 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 this Court for decision. The test has been more fully explained in, among other cases, R v Slater [1997] 1 NZLR 211. There is no possibility of a second appeal on questions of fact. The questions of law must be important and have an arguable chance of success.
The grounds of appeal: factual matters
[7]       The defence advanced in the District Court was that Mr Mitchell was not driving the vehicle in question at the relevant time. He went so far as to claim that the police officer who said he had observed Mr Mitchell driving on the occasion in question was lying, and had fabricated his evidence.
[8]       Mr Mitchell endeavoured to support the propositions he was advancing on the basis of what he claimed to be superior and more accurate notes which he had made of what had occurred at the time. He also suggested that Sergeant Povey would not have been able, in the particular circumstances, to have observed him closely.
[9]       The District Court Judge was satisfied to the criminal standard, after hearing the evidence of both the police officer and Mr Mitchell, that Sergeant Povey had identified Mr Mitchell as the driver of…

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.

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Details

Case: [2004] NZCA 195
Decision Date: 23 August 2004

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeal of Alfred James Mitchell against his conviction for three charges under the Land Transport Act 1998. Mitchell was found guilty of failing to produce a driver's license, using an unlicensed motor vehicle, and operating a vehicle without a current vehicle inspection certificate. The District Court at Whangarei imposed fines and court costs on each charge. Mitchell appealed to the High Court, arguing that the convictions were not satisfactorily proved and that the trial court lacked jurisdiction over him. The High Court dismissed the appeal, and Mitchell sought leave to appeal to the Court of Appeal, which was also dismissed. Mitchell now seeks special leave to appeal to the Court of Appeal, raising the same two grounds of appeal as before.

The legal issues the court had to decide were whether the question of law involved in the appeal was of general or public importance and whether there was an arguable chance of success. The first ground of appeal, concerning the sufficiency of evidence, was purely factual and did not raise any question of law. The second ground of appeal, concerning the jurisdiction of the court, involved a point of law but had been rejected on many occasions in the High Court and Court of Appeal. The court held that the question of law did not have an arguable chance of success, and the appeal was dismissed.

The Court of Appeal held that the appeal did not involve any question of law of general or public importance, and there was no arguable chance of success on either ground. The court noted that the issues Mitchell sought to raise were matters for public and political processes and not a judicial one. The court also held that Mitchell was not entitled to put himself outside the law of New Zealand. The court dismissed the application for special leave to appeal and ordered that the respondent would have costs against Mitchell on the application of $750, together with its reasonable disbursements, if necessary as fixed by the Registrar.

Orders