Ovtcharenko v Police - [2017] NZCA 43

IN THE COURT OF APPEAL OF NEW ZEALAND

CA595/2016
[2017] NZCA 43

BETWEEN	DANEEL OVTCHARENKO Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Kós P and Brown J

Counsel:

C Mitchell for Applicant
J Cheng for Respondent

Judgment:

(On the papers)

6 March 2017 at 10.30 am

JUDGMENT OF THE COURT

A The application to reverse the mode of hearing direction of Winkelmann J is declined.
BMr Ovtcharenko’s application for leave to bring a second appeal will be determined on the papers.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Mr Ovtcharenko’s request for a discharge without conviction on his entry of pleas of guilty in the District Court at North Shore to one charge of driving with excess breath alcohol and one of driving with an unnecessary exhibition of speed was declined by Judge Hinton.[1] His appeal was declined by Heath J in the High Court.[2] He now seeks leave to bring a second appeal.
[1]Police v Ovtcharenko [2016] NZDC 16460.
[2]Ovtcharenko v Police [2016] NZHC 2572.
On 2 February 2017 Winkelmann J made case management directions[3] and a mode of hearing direction that the application be determined on the papers. It does not appear that reasons for the latter direction were provided in accordance with s 327(3) of the Criminal Procedure Act 2011 (the CPA).
[3]Pursuant to r 5D of the Court of Appeal (Criminal) Rules 2001.
On 17 February 2017 Mr Ovtcharenko filed an application for a direction that the leave application be the subject of an oral hearing before three Judges of this Court. He contends that applications for discharge without conviction are not being determined in the District Court in a consistent manner and, in particular, are not being determined in accordance with the guidance provided in Iosefo v Police[4] and Alshamsi v Police[5] and adopted by this Court in DC (CA47/2013) v R.[6]
[4]Iosefo v Police HC Christchurch CIV-2005-409-64, 21 April 2005.
[5]Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.
[6]DC (CA47/2013) v R [2013] NZCA 255 at [43].
Mr Ovtcharenko’s application for an oral hearing is opposed by the respondent who submits that the approach followed by Heath J followed the established approach to determine the consequences of a conviction. The respondent submits that it is unclear why Mr Ovtcharenko considers that further guidance is required from this Court on the correct approach to determining the consequences of a conviction given that Mr Ovtcharenko appears to accept that there is an established approach (albeit one which he submits was not followed in his case) and fails to cite any cases where lower courts have followed an approach different from the established approach.
Although a single Judge of the Court of Appeal may make a mode of hearing direction, no Judge acting alone may reverse that decision.[7]
[7]Criminal Procedure Act 2011, s 327(2).
The CPA does not specify the composition of the Court which considers an application to reverse a decision of a single…

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 43
Decision Date: 6 March 2017 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Ovtcharenko v Police was decided by Kós P and Brown J. The applicant, Daneel Ovtcharenko, sought leave to bring a second appeal against his convictions for driving with excess breath alcohol and driving with an unnecessary exhibition of speed. The application to reverse the mode of hearing direction of Winkelmann J was declined, and the applicant's application for leave to bring a second appeal would be determined on the papers.

The primary legal issue before the Court was whether the Court of Appeal should reconsider the mode of hearing direction made by Winkelmann J, who had directed that the application be determined on the papers. The applicant contended that applications for discharge without conviction were not being determined in the District Court in a consistent manner and did not align with the guidance provided in Iosefo v Police and Alshamsi v Police, and adopted by the Court in DC (CA47/2013) v R. The respondent argued that the approach followed by Heath J in the High Court was in accordance with the established approach to determining the consequences of a conviction.

The Court held that it was appropriate and fair for the applicant's application for leave to appeal to be determined on the basis of written material. The Court found that both parties were represented by experienced counsel, adequate written submissions had been filed, and the crux of the applicant's contention was that the lower courts' consideration concerning the consequences of conviction was incorrect. The Court concluded that additional oral argument would not further assist them in this matter. Consequently, the application to reverse the mode of hearing direction of Winkelmann J was declined, and the applicant's application for leave to bring a second appeal would be determined on the papers.

Orders