Ovtcharenko v Police - [2017] NZCA 65

IN THE COURT OF APPEAL OF NEW ZEALAND

CA595/2016
[2017] NZCA 65

BETWEEN	DANEEL OVTCHARENKO Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Brown, S France and J Williams JJ

Counsel:

C Mitchell for Applicant
J Cheng for Respondent

Judgment:

(On the papers)

20 March 2017 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to file the application for leave to bring a second appeal is granted.
BThe application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

In the early hours of 16 April 2016 the applicant, Mr Ovtcharenko, drove a motorcar on the Northern Motorway near Orewa for some five kilometres, travelling at a speed in excess of 200 kilometres per hour. Eventually he was stopped by the police. An evidential breath test returned a result of 525 micrograms of alcohol per litre of breath.
Mr Ovtcharenko entered pleas of guilty in the District Court at North Shore to one charge of driving with an excess breath alcohol concentration and one charge of driving with an unnecessary exhibition of speed. His application for discharge without conviction was declined by Judge Hinton.[1] His appeal against that decision was dismissed by Heath J.[2] Mr Ovtcharenko now seeks leave to bring a second appeal against the refusal to grant a discharge without conviction.
[1]Police v Ovtcharenko [2016] NZDC 16460.
[2]Ovtcharenko v Police [2016] NZHC 2572.
The application for leave is opposed by the respondent. Winkelmann J directed that the application for leave be determined separately from the proposed appeal and on the papers. An application to review the mode of hearing direction was declined.[3]
[3]Ovtcharenko v Police [2017] NZCA 43.
Mr Ovtcharenko’s application for leave was filed out of time. The delay being minimal, we grant Mr Ovtcharenko an extension of time to file his application for leave to bring a second appeal.

Application for leave

An appeal against a refusal to discharge a defendant without conviction under s 106 of the Sentencing Act 2002 is properly characterised as an appeal against both conviction and sentence.[4] Both ss 237(2) and 253(3) of the Criminal Procedure Act 2011 state that this Court must not give leave for a second appeal unless satisfied that either the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.
[4]Jackson v R [2016] NZCA 627.
Mr Ovtcharenko’s application invoked both limbs of the statutory prerequisites for a grant of leave. With reference to the former, Mr Mitchell for Mr Ovtcharenko properly acknowledged this Court’s decision in McAllister v R, drawing attention to the observation that an illustration of a matter of general or public importance is one raising an important question of law having broad application beyond the circumstances of the particular case.[5] However, the case advanced in support of leave focused primarily on two aspects of the…

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: [2017] NZCA 65
Decision Date: 20 March 2017 at 12.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the applicant, Mr. Ovtcharenko, sought an extension of time to file an application for leave to bring a second appeal against the refusal to grant a discharge without conviction. The Court, consisting of Brown, S France, and J Williams JJ, addressed this matter. The application was opposed by the respondent, New Zealand Police. The primary legal issues before the Court were whether the application for leave to bring a second appeal involved a matter of general or public importance, and whether a miscarriage of justice may have occurred or may occur unless the appeal is heard.

The Court began by acknowledging the minimal delay in filing the application for leave, granting the extension of time to file the application. The Court then examined the statutory prerequisites for granting leave to bring a second appeal, as outlined in sections 237(2) and 253(3) of the Criminal Procedure Act 2011. The Court found that the application did not involve a matter of general or public importance, as the issues raised were specific to the particular case and did not raise an important question of law with broad application. Furthermore, the Court held that there was no appearance of a miscarriage of justice, as the High Court's consideration of the evidence was proper and the consequences of a conviction were adequately assessed.

In summary, the Court granted the application for an extension of time to file the application for leave to bring a second appeal. However, the application for leave to bring a second appeal was declined. The Court found that the proposed appeal did not involve a matter of general or public importance and did not present any appearance of a miscarriage of justice. As a result, the Court denied leave to bring a second appeal against the refusal to grant a discharge without conviction.

Orders