Phillips v Police
[2019] NZHC 2330
•16 September 2019
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2019-406-15
[2019] NZHC 2330
BETWEEN KATHERINE ANN PHILLIPS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 September 2019 Appearances:
Appellant in Person
J W N Cameron for the Respondent
Judgment:
16 September 2019
JUDGMENT OF CULL J
[1] Ms Phillips seeks to appeal her conviction of criminal harassment from April 2000. She unsuccessfully appealed her conviction in July 2000, and now seeks this Court’s leave, 19 years later, to appeal to the Court of Appeal.
[2] Ms Phillips was convicted on 17 April 2000 of one charge of criminal harassment at the District Court at Blenheim. She appealed to the High Court under s 115 of the Summary Proceedings Act 1957 but Wild J dismissed the appeal.1 She now seeks leave to appeal from the High Court decision out of time.
[3] Ms Philips is self-represented. Her grounds of appeal are general. They allege, among other matters, breaches of her fair trial rights and a miscarriage of justice. The Crown opposes the grant of leave to appeal.
1 Phillips v New Zealand Police HC Blenheim AP3/00, 20 July 2000.
PHILLIPS v NEW ZEALAND POLICE [2019] NZHC 2330 [16 September 2019]
Relevant law
[4] As the decision being appealed from dates from 2000, the applicable law is the now repealed Summary Proceedings Act 1957. Section 144 of the Act provides:
144 Appeal to Court of Appeal
(1)Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal: Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2)A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
(3)Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
[5] Section 144(2) applies where an extension of time for filing leave to appeal is required. As this appeal was not filed within 21 days of the High Court’s decision, this Court may grant leave if the question of law involved in the appeal is one which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal. In R v Knight, Richardson P discussed the Court’s approach in exercising the discretion to extend time:2
2 R v Knight [1998] 1 NZLR 583 (CA). Note Richardson P was discussing the equivalent provision under s 388 of the Crimes Act 1961.
… the starting point must be the principle that a conviction obtained according to law as it was then understood and applied should stand. Leave to appeal out of time on the ground that there has been a restatement of the applicable law should be granted only where special circumstances can be shown to justify a departure from the principle of finality. The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[6] More recently, in Butcher v R the Court of Appeal has confirmed that it will entertain an appeal many years out of time only in exceptional circumstances.3
Applications for leave to appeal out of time involve a balancing test, in which relevant considerations include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, and the practical utility of any remedies sought. The extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown are also relevant. A long delay can be a major factor weighing against leave, and, where unexplained, can be decisive.
Grounds of appeal
[7] Ms Phillips’ grounds of appeal are wide-ranging. She contends that her behaviour in 1999 did not meet the criminal standard of harassment. She says that the documents or exhibits before the Court were unlawful, containing her incorrect name, which is Katherine Ann Starr Phillips, not Katherine Ann Phillips as charged. Although Ms Phillips was entitled to a jury trial, this did not occur, and she says her guarantee of a fair and impartial trial under the New Zealand Bill of Rights Act 1990 was not followed.
[8] Further, Ms Phillips alleges she was illegally detained at the Havelock Police Station and, among other submissions, alleges the original Trial Judge was intimidated by the police prosecutor. She says the police officer in charge of the case had conflicts of interest because of his relationships with the complainants, and her counsel failed to represent her properly.
3 Butcher v R [2015] NZCA 102 at [7] (footnotes omitted).
[9] The Crown opposes Ms Phillips’ leave application, and submits the issue on appeal is confined to whether leave should be granted to bring a further appeal out of time only. The substantive grounds of the appeal cannot ultimately be resolved by this Court, the Crown says, but may have some relevance on the decision to grant leave, if the threshold for granting leave is met.
Discussion
[10] Ms Phillips’ application for appeal has been filed 19 years after her conviction was first entered. Following her conviction in the District Court, Ms Phillips lodged an appeal in time, which came before Wild J. His decision is comprehensive and examines each of the grounds of appeal raised, including that the Trial Judge misdirected himself and amended the charging information to cover incidents occurring either side of 9 December 1999. Wild J undertook an assessment of the pattern of behaviour alleged against Ms Phillips and considered whether it amounted to harassment under the Harassment Act 1997. From Ms Phillips’ oral and written submissions, it is unclear which aspects of Wild J’s decision, if any, are challenged by her present leave application.
[11] When pressed for the reason for her delay in making her application, Ms Phillips did not wish to advance any reasons, relying on her “fundamental, democratic right to appeal to the Court” and that she does not have to give a reason why there has been such a long delay.
[12] I turn, then, to apply the relevant considerations in Butcher v R to this case. I acknowledge the wider interests of society is served by the finality of decisions, and note that the liberty of the appellant is not involved here. The only practical utility of the remedy sought is the quashing of Ms Phillips’ conviction but that relies on an assessment of the strength of the proposed appeal.
[13] Unfortunately, I do not consider there is anything in Ms Phillips’ submissions which justifies a departure from the principle of finality. In the absence of evidence, there is no proper basis to examine the allegations of pressure on the Trial Judge, inadequacy of counsel, or the allegation that the Court documents are tainted by illegality in this proceeding.
[14] Wild J’s decision canvassed the matters raised by Ms Phillips in relation to the trial deficiencies alleged, and he rejected them with proper and full reasons. Ms Phillips’ grounds of appeal contain serious allegations, such as judicial intimidation at first instance, conflict of interest and illegal detention, but there is little or no supporting evidence for such allegations.
[15] Asher J noted in Butcher v R that “[t]his Court has affirmed on numerous occasions that it will only entertain an appeal that is many years out of time, such as this, in exceptional circumstances.”4 In that case, the Court of Appeal was considering an extension of time to appeal against an assault conviction entered four years previously and refused leave.
[16] The effect of her conviction clearly concerns Ms Phillips, but her application for leave before me does not provide the special features that are required to justify leave.
[17] I do not find it is in the interests of justice to hear the appeal, noting as I do the requirement of s 144(2) of the Summary Proceedings Act that there must be a question of law involved in the appeal which has general or public importance requiring a determination. There is no such discernible question of law here.
[18] Without any further explanation for the 19 to 20 year delay, I find that it is not in the interests of justice to grant Ms Phillips leave to appeal out of time.
Result
[19]The application for leave to appeal is declined.
Cull J
Solicitors:
O’Donoghue Webber, Nelson for the Respondent
4 Butcher v R, above n 3, at [7].