P v Police HC Dunedin CRI 2008-412-50

[2009] NZHC 95

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2008-412-000050

P

Appellant

v

POLICE

Respondent

Hearing:         11 February 2009

Counsel:         No appearance for Appellant

C Power for Respondent

Judgment:      11 February 2009

JUDGMENT OF FOGARTY J

[1]      In these proceedings Mr P   seeks to appeal a direction by Judge Kellar that a report be prepared pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.  This in the context where the appellant has been charged with two charges of first behaving in a disorderly manner and secondly, resisting a police officer acting in the execution of his duty.

[2]      I understand that the  report has  in  fact  been  obtained  with  the  aid  of  a reinforcing order of temporary custody.  I have received a handwritten letter dated

5 February from Mr P   seeking an adjournment for two months in the interests of

natural justice and advancing as his reasons in the letter that he has written to the

P V POLICE  HC DUN CRI 2008-412-000050 11 February 2009

Prime Minister, and other persons I do not need to name, inviting the Prime Minister, for example, to also contact senior dignitaries in the United Kingdom.

[3]      Mr P   has not appeared in Court this morning.

[4]      Normally where an appellant appears for himself and seeks an adjournment or does not turn up I will, as a matter of course, grant an adjournment in order to endeavour to give the appellant a hearing.  In this case I have decided not to do so for two reasons.  Firstly, I do not think that the appellant has a right of appeal.  The relevant provision Mr Power, for the Crown, submits is s 115 of the Summary Proceedings Act 1957 which provides:

115 Defendant's general right of appeal to High Court

(1) Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint, and—

(a) Convicts any defendant; or

(b) Makes any order, including—

(i) An order for the payment for costs; or

(ii)     An order declining an application for the payment for such costs; or

(iii)    An order for the estreat of a bond,—

the person convicted or against whom the order is made may appeal to the High Court.

(2)       In the case of a conviction, the appeal may be against the conviction and the sentence passed on the conviction, or against the conviction only, or against the sentence only; and, in the case of an order for the payment of money, the appeal may be against the order and the amount of the sum ordered to be paid, or only against the amount of the sum ordered to be paid.

(2A)     A person sentenced under section 28F(4) of the District Courts Act

1947  to  a  term of  imprisonment  or  to  a  fine  that  does  not  exceed  the maximum term of imprisonment or the maximum fine that may be imposed by a District Court under section 7  may appeal to the High Court against the sentence.

(3)       No  appeal  against  conviction  shall  be  brought  until  the  person convicted has been sentenced or otherwise dealt with.

(4)       Every appeal under this section, or under any of sections 115A  to

115 DA, is a general appeal.

[5]      That is an appeal with built-in limitations.   It does not confer any general right of appeal against all decisions of the District Court and without hearing full argument  I  think  there  is  a  very  significant  argument  it  does  not  include  the directions in this case under the Criminal Procedure (Mentally Impaired Persons) Act.

[6]      Second, it is apparent to me, both from the letter I have received and from the steps that Judge Kellar has had to undertake that Mr P   does have mental health conditions which may be exacerbated or aggravated if I were to adjourn this case and give him some kind of hope that he had some chance of success, particularly against the events that have already taken place.

[7]      I think it is in the best interests of Mr P   personally for the proceedings in the District Court to continue.  If when they are concluded he considers he has been wronged then he has a right of appeal and he can pursue his grievances at that stage if he wants to.

[8]      For these reasons the appeal is dismissed.

Solicitors:

Crown Solicitor, Dunedin, for Respondent