Paice v Police

[2018] NZHC 1548

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-195

[2018] NZHC 1548

BETWEEN

KARL JOSEPH PAICE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

25 June 2018

Appearances:

Appellant in person

P C Murray for Respondent

Judgment:

26 June 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 26 June 2018 at 4.15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

PAICE v POLICE [2018] NZHC 1548 [26 June 2018]

[1]                 Karl Paice, who is self-represented, has filed a notice of general appeal against a decision made by Judge Winter in the Papakura District on 30 May 2018 granting leave to the police to withdraw a charge brought against Mr Paice of driving whilst his driver’s licence was suspended.1

[2]                 The charging document filed in the District Court at Kaikoura on 25 December 2017 alleged that on 23 December 2017, Mr Paice drove a motor vehicle on State Highway 1 at Kaikoura whilst his driver’s licence was suspended, he having been convicted at least twice previously of an offence against s 32(1) of the Land Transport Act 1998.

[3]                 On 2 March 2018 Judge MacAskill transferred the proceeding from the Kaikoura District Court to the Papakura District Court for a Judge-alone trial, noting that the only issue was whether the defendant had been served with a suspension notice which was said by the prosecution to have been effected in Papakura.

[4]                 Mr Paice appeared before Judge McGuire in the Papakura District Court on 12 April 2018. The Judge noted that Mr Paice contended that he had not been served with the suspension notice, and that at the time he was said to have been served he was in fact in Nelson. The matter was further adjourned to 30 May 2018 to enable Mr Paice to obtain a sworn statement from a witness and to provide information to the prosecutor relating to his dispute over service of the suspension order.

[5]                 When the matter was called in the Papakura District Court on 30 May 2018, Mr Paice did not attend. The police prosecutor applied for leave to withdraw the charge of driving while suspended, and Judge Winter granted leave.

[6]The grounds of appeal relied upon by Mr Paice read:

I by mistake missed hearing but still want my day in court as the suspension that was never served was acted upon. This has created a number of events, charges and costs as well as putting a life [at] risk. The only way that this can be resolved is in front of a judge and the wrongs and lies be exposed.

1      Land Transport Act 1998, ss 32(1)(c) and 32(4).

[7]                 Mr Paice appeared in person at the hearing before me but apart from confirming the background circumstances as set out above, did not make any further submissions.

[8]                 For the respondent Mr Murray submits that there is no general right of appeal against a decision of the Court to grant leave to withdraw a charge pursuant to s 146 of the Criminal Procedure Act 2011 (the Act). He acknowledges that there is a right of appeal on a question of law under s 296 of the Act. However, he says that the granting of leave to withdraw the charge did not determine the charge or occur in proceedings related to or following the determination of the charge, as s 296(3) requires. Accordingly, there is no jurisdiction to appeal by way of a question of law under s 296 of the Act. Furthermore, no question of law has been identified and Mr Murray submits that it would be difficult to conceive of a question of law that could arise in circumstances such as this where leave to withdraw a charge has been granted.

[9]                 Mr Murray therefore submits that Mr Paice’s notice of general appeal should be treated as an application for leave to appeal under s 296(2) and that leave to appeal should be declined on the basis that there is no jurisdiction to hear the appeal.

Discussion

[10]              As Mr Murray submitted, there is no general right of appeal against a decision granting leave for the withdrawal of a charge pursuant to s 146 of the Act. The only potential avenue of appeal in this situation is under s 296 of the Act, which confers a right of appeal (with leave) on a question of law arising in the determination of a charge. Section 296 provides:

296     Right of appeal

(1)This section applies if a person has been charged with an offence.

(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3)The question of law in a first appeal under this subpart must arise—

(a)in proceedings that relate to or follow the determination of the charge; or

(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

(4)The question of law must not be one that—

(a)arises from a jury verdict; or

(b)arose before the trial and has already been decided under subpart 2.

[11]              In Anderson v R, the Court of Appeal considered whether the High Court had jurisdiction to hear an appeal from a District Court decision declining an application to change a Judge-alone election to one of trial by jury.2 In the High Court Woolford J found the Court had no jurisdiction because a decision on the mode of trial is not one related to the determination of the charge under s 296(3)(a).3 The Court of Appeal observed that the question turned on the correct approach to the interpretation of the terms of the section, and in particular the words “relate to” and “determination”, as well as the nature of the connection to the disposition of the charge. The Court of Appeal said:4

The ordinary dictionary meaning of the words “relate to” and “determination” support Woolford J’s view that there must be a close connection between the proceedings and the determination. The Shorter Oxford English Dictionary defines “relate” as meaning “establish a connection between” and “[h]ave reference to, concern”. It defines “related” as meaning “connected”. The Webster’s Dictionary refers to showing or establishing “a logical or causal connection between”. The Shorter Oxford English Dictionary definition of “determine” is to “[p]ut an end to; come to an end. … [s]ettle or decide (a dispute, controversy, etc, or a sentence, conclusion, issue, etc)”. In the Webster’s Dictionary “determination” is defined as “the settling and ending of a controversy esp by judicial decision”.

(footnotes omitted)

[12]              In considering the matter, the Court of Appeal referred to several decisions under s 115 of the Summary Proceedings Act 1957, which provided for a general right of appeal in the summary jurisdiction where the District Court “determines any information or complaint”. Citing Burton v Police,5 the Court noted that matters held

2      Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321.

3      Anderson v Police [2015] NZHC 293, [2015] NZAR 999.

4 At [41].

5      Burton v Police [1961] NZLR 698 (SC).

to fall outside the ambit of s 115 included an order granting leave to withdraw an information.

[13]              In Burton v Police, Barrowclough CJ considered whether an appeal lay against the decision of a Magistrate granting leave to withdraw charges. He said:6

In the present case, the learned Magistrate did make a decision. He decided to accede to the informant’s request, made under s. 157 of the Summary Proceedings Act, for leave to withdraw the information. But was he in making that decision deciding the information? I think not. He was making a decision on an entirely different matter : viz. an application for leave to withdraw, which, if granted, would preclude him from ever reaching the stage at which it could be said that he had decided or determined the subject matter of the information. For that reason, I think that the order granting leave to withdraw the information was an order made in determining the application for leave to withdraw and not an order made in determining the information. The circumstances under which a right of appeal arises under s 115 therefore do not exist and this Court has no jurisdiction to entertain an appeal.

[14]In D (CA716/2015) v R the Court of Appeal observed:7

[13]      As s 296(3) makes clear, the right of appeal is limited to questions of law that arise either:

(a)in proceedings that relate to or follow the determination of the charge; or

(b)in the determination of the charge (including, without limitation, a conviction, an acquittal or the dismissal of the charge under s 147 of the Criminal Procedure Act 2011 or a stay of prosecution).

[14]      Mr Shamy accepted that the reference in s 296(3)(b) to “the dismissal of the charge under s 147 or a stay of prosecution” was a reference to cases where a stay or dismissal has actually been granted by the trial court, not where, as in this case, it has been refused. In other words, the effect of the reference in s 296(3)(b) to dismissals and stays is the same as the old s 318A of the Crimes Act. It confers a right on the Crown to appeal a stay or discharge on a question of law because the effect of the stay or dismissal decision is to bring an end to the prosecution. In contrast, the refusal to grant a stay is not a “determination” of the proceeding. It is the opposite. It means the proceeding will continue.

[15]      While s 147 of the Act is specifically referred to in s 296(3)(b), there is no mention of s 146. A charge dismissed pursuant to s 147 of the Act is deemed to be an acquittal pursuant to s 147(6). Other determinations referred to in s 296(3)(b),

6      At 701.

7      D (CA716/2015) v R [2016] NZCA 190.

including a conviction, an acquittal or stay of prosecution, in each case puts an end to the proceedings. In contrast, an order granting leave to withdraw a charge pursuant to s 146 does not bring an end to proceedings. Section 146(2) expressly provides that the withdrawal of a charge under the section is not a bar to any other proceedings in the same manner. Applying the same reasons as Barrowclough CJ in Burton v Police in relation to s 115 of the Summary Proceedings Act, I consider that a decision to grant leave to withdraw charges is not a determination of the charge for the purposes of s

296 of the Act. Nor does it arise in proceedings relating to or following the determination of a charge.

[16]      The present case can be distinguished from Maangi v R, where the Court of Appeal granted leave to appeal on a question of law in relation to a District Court Judge’s decision to grant leave to the prosecutor to withdraw charges.8 There, the District Court Judge had decided to grant leave to withdraw charges in the context of a hearing under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP). One possible outcome of a hearing under s 9 was dismissal of the charge under s 147 (with such dismissal being deemed to be an acquittal). The Judge in Maangi did not reach that outcome; instead leave was granted to the prosecutor to withdraw the charges. Nevertheless, the Court of Appeal considered that, because a possible outcome was dismissal of the charge under s 147, the proceedings under s 9 of the CPMIP were sufficiently closely connected to the determination of the charge so as to satisfy the jurisdictional requirements of s 296(3) of the Act.

[17]      The District Court Judge’s decision in the present case did not arise in the context of the CPMIP, so the situation in Maangi is quite different from that which arises here. I consider that the requirements of s 296 are not satisfied in the present case.

Result

[18]      For these reasons, I find that there is no jurisdiction to consider Mr Paice’s proposed appeal. Accordingly Mr Paice’s appeal is dismissed.

Paul Davison J

8      Maangi v R [2017] NZCA 156.