Peters v Police

[2014] NZCA 215

IN THE COURT OF APPEAL OF NEW ZEALAND

CA370/2013
[2014] NZCA 215

BETWEEN	CHRISTOPHER JOHN NEALE PETERS Applicant
AND	NEW ZEALAND POLICE First Respondent
AND	AUCKLAND TRANSPORT Second Respondent

Hearing:	27 May 2014
Court:	Stevens, Winkelmann and Lang JJ
Counsel:	No appearance on behalf of Applicant P D Marshall for Respondents
Judgment:	3 June 2014 at 3.00 pm

JUDGMENT OF THE COURT

A        The applications for leave to appeal are to be treated as having lapsed.

B        There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

1. On 11 May 2012 Mr Peters was sentenced in the District Court to 40 hours’ community work on charges of using an unlicensed motor vehicle and operating an unlicensed vehicle.  This sentence followed the earlier imposition of a fine by the Thames District Court on the first charge and a fine by the Pukekohe District Court on the second.  He did not pay either fine.  Having dismissed his appeals against conviction and sentence,[1] the High Court refused to grant Mr Peters leave to appeal to the Court of Appeal.[2]

   [1]Peters v Police [2012] NZHC 2263 and Peters v Auckland Transport [2012] NZHC 2265.

   [2]Peters v Police [2013] NZHC 884.

2. Mr Peters sought special leave to appeal to this Court.  His application was filed out of time.

3. The original fixture for Mr Peters’ application was adjourned at his request after he was hospitalised.  A new fixture was allocated for 27 May 2014.

4. The Registry has since ascertained that Mr Peters died on 25 August 2013.

5. The usual practice of this Court on the death of an appellant is to treat the appeal as having lapsed.[3]  However in appropriate cases a personal representative may be permitted to continue an appeal.[4]

   [3]R v K (CA354/02) CA354/02, 1 December 2004.

   [4]R v Saxton [2009] NZCA 61, [2009] 3 NZLR 29; Court of Appeal (Criminal) Rules 2001, r 45.

6. The applications for special leave were set down for hearing on 27 May 2014.  Helpful submissions were filed by the respondents.  Mr Marshall appeared on behalf of both respondents.  There was no appearance on behalf of the late Mr Peters.

7. The respondents submit that this is not an appropriate case to permit the appeal to proceed for the following reasons:

   (a)This is an application for special leave to bring a second appeal, not a first appeal as of right;[5]

   (b)There is no question of law which, by reason of its general or public importance or any other reason, ought to be submitted to this Court for decision;[6]

   (c)No submissions in support of the application have been filed.[7]

   (d)There is no indication that any personal representative of Mr Peters has a continuing financial interest in the outcome of the application;[8]  and

   (e)No personal representative of Mr Peters has applied to be added as an applicant.[9]

   [5]Section 25(h) of the New Zealand Bill of Rights Act 1990 does not apply: R v Slater [1997] 1 NZLR 211 (CA) at 217.

   [6]Summary Proceedings Act 1957, s 144(3).

   [7]Compare R v Beri CA456/03, 29 June 2004.

   [8]R v Saxton, above n 4.

   [9]Walker v Rusbatch [1959] NZLR 600 (SC) at 603.

8. We agree with the respondents’ submission that the jurisdiction to allow an application for special leave to appeal to continue after the death of a criminal appellant or applicant should be sparingly exercised and only in exceptional circumstances.

9. We are satisfied that no exceptional circumstances exist in relation to either of the applications for leave to appeal.

10. For the above reasons the Registry files should in each case be endorsed with a notation that the application for leave to appeal has lapsed.  We so order.  There is no order as to costs.

Solicitors:
Crown Law Office, Wellington for Respondent