Overington v Police

[2015] NZHC 911

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000291 [2015] NZHC 911

DENNIS GIBSON OVERINGTON APPELLANT

v

NEW ZEALAND POLICE RESPONDENT

Hearing:	(On the papers)
Counsel:	Appellant in Person Sarah Wilson for the Respondent
Judgment:	4 May 2015

JUDGMENT OF MOORE J

This judgment was delivered by me on 4 May 2015 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

OVERINGTON v NEW ZEALAND POLICE [2015] NZHC 911 [4 May 2015]

Introduction

[1]      On 16 December 2014, I dismissed Mr Overington’s appeal against his conviction  and  sentence  on  two  charges  under  the  Land  Transport  Act  1998. Mr Overington now seeks leave to appeal to the Court of Appeal.  He also asks that I do not determine the leave application until he has had the opportunity to make a recall application.

[2]      Mr Overington filed his application for leave to appeal on 22 December

2014.  No application for recall has been filed.  For reasons set out more fully later in this judgment I consider that, in any event, any recall application would necessarily fail.  I shall therefore determine the application for leave without further delay.

Application for leave

[3]      Mr Overington raises two grounds in his application for leave:

(a)      that I was wrong to adopt a narrow interpretation of the phrase “under mechanical repair” in concluding that Mr Overington was required to keep a log book at the relevant time; and

(b)that  I was  wrong  to  conclude  that  Mr  Overington  was  using  the vehicle for his personal use, and was not in the process of repairing it at the relevant time.

[4]      Again Mr Overington also objects to the way the Police have chosen to proceed with this matter.

Opposition to leave

[5]      The Police oppose leave on the basis that Mr Overington has not identified a question of law capable of serious and bona fide argument, and that the appeal is effectively fact specific and simply repeats material already covered in this Court. The Police also submit that the proposed grounds of appeal raise no question of public interest appropriate for a second appeal.

Approach to Application

[6]      The jurisdiction of the High Court to grant leave to appeal to the Court of Appeal in this cases is drawn from s 144 of the Summary Proceedings Act 1957 which relevantly 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 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.

[7]      The essence of this section is that leave to make a second appeal to the Court of Appeal may only be granted if there is a question of law which should be heard by that Court.  Generally, such leave is only to be granted if the appeal is one which raises a question of general or public importance.

Should leave be granted?

[8]      The issue of granting leave must be considered separately on the two issues which Mr Overington raises.

[9]      On the question of the definition of “under mechanical repair” I accept this is capable of being restated as a question of law.  However, I am satisfied that leave should be declined for two reasons.

(a)      First,  while  I  was  prepared  to  rule  on  the  meaning  of  “under mechanical repair”, this question was not ultimately determinative in the appeal.   Because I accepted the Police’s account, namely that

Mr Overington was using the vehicle for his personal use and merely repairing it,  he was  required  to  keep  a logbook  regardless  of the meaning of that phrase.

(b)Secondly, while there is an arguable question of law, I do not consider it raises matters of such general or public importance that leave should be granted.

[10]     On the second question, whether I was correct to reject Mr Overington’s account and accept that of the Police, Mr Overington suggests that I applied the wrong standard.  He says that there is more than one explanation for what happened and that, as a result, he should be accorded the “benefit of the doubt”.

[11]     This is not a question of law, but rather a question of fact.  I was entitled to accept the Police’s account of the night in question and reject that put forward by Mr Overington.  Even while applying the standard of proof beyond a reasonable doubt, a finder of fact may determine that a person’s account is simply not credible.  There can be no appeal on this issue.

[12]     It follows from this that leave must be refused on both issues.  I also note that the other matters raised by Mr Overington in his notice of appeal are not formulated as grounds of appeal but merely address the various reasons he remains dissatisfied with how the Police have proceeded against him.  This is not a matter which can be determined in the present proceedings.

Recall application

[13]     Mr  Overington  has  not  made  a  formal  application  to  recall  my  earlier judgment.  However, I anticipate that any such application would have been on the grounds he has raised in the present application.  If such an application were to be made I am satisfied it would not have succeeded.

[14]     Rule  11.9  of  the  High  Court  Rules  provides  that  a  judge  may  recall  a judgment at any time before it is sealed. The situations in which recall is appropriate

are well known and are set out in the decision of Wild CJ in Horowhenua County v

Nash (No 2):1

Generally speaking,  a judgment  once  delivered  must  stand for  better  or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[15]     In the present case, the grounds which Mr Overington has raised in relation to his appeal do not fit within any of Wild J’s three categories.  Mr Overington does not suggest I have overlooked any matter of law; rather he argues I have taken an incorrect view of the facts. As such, an application for recall on these grounds would necessarily fail.

Disposition

[16]     For  the  reasons  set  out  in  this  judgment,  I  decline  Mr  Overington’s

application for leave to appeal my judgment.

Moore J

Solicitors:

Crown Solicitor, Auckland

Copy to:

Mr Overington

1      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, approved of in Saxmere Co

Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] NZLR 76.