Paterson v Police

[2020] NZCA 139

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA527/2019
 [2020] NZCA 139

BETWEEN	PHILIP ANTHONY PATERSON Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Courtney, Ellis and Brewer JJ
Appearances:	Applicant in person Z R Johnston for Respondent
Judgment: (On the papers)	4 May 2020 at 3.30 pm

JUDGMENT OF THE COURT

ALeave to bring a second appeal against conviction is declined.

BLeave to bring a second appeal against sentence is declined for want of jurisdiction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

1. Mr Paterson pleaded guilty to one charge of wilful trespass.  On 5 September 2018, Judge Garland convicted Mr Paterson and ordered him to appear for sentence if called upon within nine months.[1]  That period has long expired.

   [1]Police v Paterson [2018] NZDC 21458.

2. Mr Paterson has always represented himself.

3. Mr Paterson appealed his conviction and his sentence to the High Court.  His grounds were:

   (a)Conviction: The prosecution case was that his presence at a water supply tank amounted to trespass because the tank was on land described as “the Wilberg Farm”.  Mr Paterson accepted it would be trespass for him to go on the Wilberg Farm but said the water supply tank was not on the Wilberg Farm.[2]

   (b)Sentence: During the sentencing Judge Garland mistakenly attributed to Mr Paterson a list of convictions relating to a co-defendant.

   [2]Mr Paterson had previously been served with a trespass notice in relation to the Wilberg Farm.

4. It seems the High Court never decided Mr Paterson’s appeal against his sentence.  When the appeal came for hearing before Osborne J on 15 March 2019, the Judge decided he had to adjourn the appeal to enable the parties to bring clarifying evidence on the precise location of the water supply tank.  In his minute of 18 March 2019, Osborne J said:[3]

   Mr Paterson has appealed both the conviction and the sentence.  In this Minute I am focused on the conviction.

   [3]Paterson v Police HC Christchurch CRI-2018-418-4, 18 March 2019 at [2].

5. The appeal eventually came before Dunningham J for hearing on 25 July 2019.[4]  Dunningham J dealt only with the appeal against conviction.  There was no mention of the sentence.[5]

   [4]Paterson v Police [2019] NZHC 1796.

   [5]For some reason, Crown counsel treated the complaint about the sentence as being part of the appeal against conviction and submitted the complaint was irrelevant to the appeal against conviction. Dunningham J did not mention it.

6. Mr Paterson now seeks leave to bring a second appeal to this Court against both his conviction and his sentence.  To be granted leave, Mr Paterson must satisfy us his appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless his appeal is heard.[6]

Discussion

[6]Criminal Procedure Act 2011, s 237.

1. As to the conviction, Mr Paterson does not raise an issue of general or public importance.  Rather, he asserts a miscarriage of justice.  As best we can make out, his complaints are that Dunningham J conducted the appeal hearing by telephone and should not have accepted the prosecution evidence as to the location of the water supply tank.

2. There is nothing in either of these points which can establish a miscarriage of justice.  While an appeal against conviction should be heard in open court, there is no record of an objection to the procedure being made by Mr Paterson, nor does he assert now that he did make an objection.[7]  Mr Paterson had filed his written submissions and was able to speak to them during the telephone hearing.  There has been no breach of natural justice and no miscarriage of justice.

   [7]The telephone hearing procedure was directed by Osborne J; there was a suggestion by the Crown that this was to spare Mr Paterson having to travel to Christchurch from his home on the West Coast.

3. As to the location of the water supply tank, Dunningham J had maps put forward by Mr Paterson which did not show the boundaries of the Wilberg Farm.  The Judge also had maps put forward by the prosecution which did show the boundaries of the Wilberg Farm and within them the water supply tank.  There was also a statement from one of the farmers of the Wilberg Farm confirming the water supply tank is on the Wilberg Farm land.  The Judge was entitled to treat the maps provided by the prosecution as the more reliable for the reasons she gave. 

Decision

1. Leave to bring a second appeal against conviction is declined.

2. We have no jurisdiction to entertain an appeal against the sentence because Mr Paterson’s first appeal to the High Court has yet to be determined.  Crown counsel should now ensure the appeal against sentence, if Mr Paterson wishes to pursue it, is progressed without further delay.  Leave to bring a second appeal against sentence is declined for want of jurisdiction.

Solicitors:
Crown Law Office, Wellington for Respondent.