O'Byrne v Police
[2013] NZCA 474
•10 October 2013 at 4 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA574/2013 [2013] NZCA 474 |
| BETWEEN | RODGER WILLIAM O'BYRNE |
| AND | NEW ZEALAND POLICE |
| Hearing: | 30 September 2013 |
Court: | O’Regan P, Panckhurst and MacKenzie JJ |
Counsel: | Applicant in person |
Judgment: | 10 October 2013 at 4 pm |
JUDGMENT OF THE COURT
The application for special leave to appeal is dismissed.
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REASONS OF THE COURT
(Given by O’Regan P)
Mr O’Byrne was convicted after a District Court trial before Judge Moran on one charge of threatening to kill and one charge of discharging a firearm near a dwelling house without reasonable cause so as to annoy or frighten any person.[1] The complainant in relation to each charge was his neighbour.
[1]New Zealand Police v O’Byrne DC Christchurch CRN12009003074, 5 November 2012.
In relation to each charge he was sentenced to a fine of $500 and ordered to pay $750 to the victim for reparation for emotional harm. He was also ordered to pay Court costs of $132.89. The Judge also ordered Mr O’Byrne to enter into a bond in the sum of $5,000 on condition that he keep the peace towards his neighbour and his neighbour’s family and refrain from acting in a threatening manner or from repeating any of the actions which led to the charges on which he was convicted for a period of one year.[2] Mr O’Byrne appealed to the High Court against both conviction and sentence. His appeal was dismissed by Chisholm J.[3]
[2]New Zealand Police v O’Byrne DC Christchurch CRI-2012-009-2618, 18 December 2012.
[3]O’Byrne v New Zealand Police [2013] NZHC 1367.
Mr O’Byrne then sought leave to appeal to this Court from the High Court. Leave was refused by Gendall J.[4]
[4]O’Byrne v New Zealand Police [2013] NZHC 2065.
Mr O’Byrne now seeks special leave to appeal. His application is made under s 144(3) of the Summary Proceedings Act 1957. Under s 144(3), this Court may grant special leave only if the appeal involves a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision. As this Court said in R v Slater, and as we explained to Mr O’Byrne at the hearing before us:[5]
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 [s 144(2) and (3)] are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question of whether that point of law raises a question of a general or public importance, are to be diluted.
[5]R v Slater [1997] 1 NZLR 211 (CA) at 215.
We explained during the hearing before us that the concerns Mr O’Byrne has about the factual findings made by the District Court Judge are not matters which can be the subject of a second appeal. Our system of justice provides for a trial and an appeal as of right, in this case an appeal to the High Court. However, the allocation of the resources of the Court of Appeal to second appeals is rationed by the requirement that not only must the appeal be on a question of law, but that the question of law must be of sufficient significance to justify the use of the time of the Court of Appeal on a matter which has already been the subject of two court decisions.
When pressed to identify questions of law that might meet the requirements of s 144(3), Mr O’Byrne tended to allow his focus to drift back toward issues of fact which are no doubt matters he considers to be significant, but which cannot be the subject of a further appeal to this Court. When pressed, he identified two issues in relation to the count of discharging a firearm that he said were questions of law that could engage s 144(3).
The first was whether the discharge of the firearm occurred “near a dwelling house”. Both the District Court Judge and the High Court Judge applied well settled law in determining that the location at which the shot was fired was near to the neighbour’s residence and that this element of the offence was therefore established. The law in this regard is well settled and Mr O’Byrne’s real issue is the way in which the law was applied to the facts of the case. There is nothing in this point which could bring it within s 144(3).
The second was whether Mr O’Byrne had “reasonable cause”. Again his real complaint here is with the findings of fact made in the District Court and upheld in the High Court. Again the issue is not one which is amenable to appeal under s 144(3).
In relation to the charge of threatening to kill, Mr O’Byrne said that there were multiple errors of fact which, cumulatively, amounted to an error of law. Unfortunately for Mr O’Byrne, s 144(3) does not provide for an appeal in relation to questions of fact, whether there are one or many in issue. He has not identified a question of law and the Court therefore cannot assert jurisdiction to hear his proposed appeal.
As no question of law has been established, let alone one which is of sufficient importance to justify second appeal, the application for special leave to appeal must be dismissed.
We record that Mr O’Byrne filed further written material after the hearing. He should not have done so without leave. Nothing in that material changes the views we have expressed above.
Solicitors:
Crown Law Office, Wellington for Respondent
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