Power v Police
[2014] NZHC 2231
•15 September 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-351 [2014] NZHC 2231
BETWEEN ANNA DE LA POER POWER
Applicant
AND
NEW ZEALAND POLICE Respondent
Hearing: On the papers Counsel:
DRF Gardiner for the Applicant
E Rutherford for the RespondentJudgment:
15 September 2014
JUDGMENT OF ELLIS J
This judgment was delivered by me on Monday 15 September 2014 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel/Solicitors:
DRF Gardiner, Barrister, Parnell, Auckland
E Rutherford, Meredith Connell, Auckland
POWER v NEW ZEALAND POLICE [2014] NZHC 2231 [15 September 2014]
[1] Mrs Power seeks leave to appeal my decision of 19 July 20111 dismissing her appeal against conviction and sentence on four charges under the Dog Control Act
1996 (the Act) relating to her ownership of two dogs (Shiloh and Bear) and her failure to keep those dogs under control. The District Court had found that the dogs had attacked a jogger as she ran near to Mrs Power’s property.
[2] The proposed ground of appeal is said to be my failure to recognise and give due weight to the deficiencies in the evidence concerning the identification of the dogs Shiloh and Bear.
[3] Notwithstanding the destruction orders made by the District Court and upheld by me, it seems that one of the dogs remains alive, over three years later. Mrs Power seeks a stay of “execution” in that regard.
[4] The application is opposed. The respondent says that Mrs Power has failed to identify any question of law of general and public importance capable of determination by the Court of Appeal.
[5] The relevant chain of events is as follows:
(a) The applicant was charged in April 2008;
(b) On 5 May 2010 following a defended hearing before the late Chief
District Court Judge Mrs Power was convicted on the four charges; (c) On 31 August 2010 Mrs Power was sentenced by Judge Recordon;
(d)On 15 September 2010 she lodged an appeal against her conviction and sentence;
(e) That appeal was determined by me on 19 July 2011, when I made the following orders:
(i) appeal against conviction dismissed;
1 Power v Police HC Auckland CRI-2010-404-351, 19 July 2011.
(ii) order for the destruction of the dogs confirmed; (iii) reparation ordered to victim and fine confirmed;
(iv) reparation ordered to the Rodney District Council quashed.
(f) On 14 December 2011 Mrs Power applied for a rehearing in the
District Court and this was declined by Judge Recordon on 31 January
2012;
(g)Mrs Power’s counsel filed a memorandum addressing matters raised in Judge Recordon’s decision, in light of which the application for rehearing was set down for 25 August 2012;
(h) On 2 July 2014 Judge Johns declined the application for a rehearing.2
The application for leave to appeal is out of time
[6] Since the charges against Mrs Power were laid under the pre CPA regime, this appeal is brought under s 121 of the Summary Proceedings Act 1957 (the SPA).3
Under s 144 of the SPA, she had 21 days from 19 July 2011 to file a notice of appeal. The notice was filed on 8 August 2014 and the application for leave to appeal is out of time by some three years. The explanation offered is the delay in the determination of the application for a rehearing. But at the time the application for rehearing was filed the period for filing an appeal from my decision had already expired.
Principles governing leave to appeal to the Court of Appeal
[7] Section 144 of the SPA 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 a question of law arising in any general appeal:
2 Power v New Zealand Police DC Waitakere CRN 2009-090-011184, 2 July 2014.
3 See s 397 of the Criminal Procedure Act 2011.
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 times 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.
…
[8] In R v Slater the Court of Appeal said: 4
Section 144 was not intended to provide a second tier of appeals from decisions of a District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subs (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general public importance are to be diluted.
[9] An applicant for leave must therefore show that:
(a) there is a question of law raised by the proposed appeal;
(b)that question is one which, by reason of its general and public importance or any other reason, ought to be submitted to the Court of Appeal.
[10] In order for leave to be granted, the Court must also be of the opinion that the question identified should be so submitted.
[11] Any point of law must be arguable on the facts:5
It is also well established that, before the High Court or this Court, in the exercise of its discretion, will grant leave or special leave to appeal, that Court will require to be satisfied that there is a tenable argument available on the question of law raised. Again it would be contrary to the statutory policy
4 R v Slater [1997] 1 NZLR 211 (CA).
5 Candy v Auckland City Council CA371/02, 17 February 2003 at [15].
to grant leave to argue a point which was considered not seriously arguable by the Court asked to grant leave. That is so even if the question concerned is of significant interest to or affects numerous members of the public as we are prepared to assume is the case with the present application.
Discussion
[12] I would neither grant an extension of time nor (in the event that an extension should be granted) the application for leave.
[13] As far as the application for an extension of time is concerned, Mrs Power waited 5 months before filing the application for a rehearing in the District Court. In the absence of any good reason for the delay I would have declined an application for an extension of time for seeking leave to appeal even then (in December 2011). Nor do I accept that apparent delays or difficulties in the District Court since that time justify the subsequent delay; quite how there could be a rehearing of the matter in the District Court when her appeal had already been dismissed by this Court is not clear to me.
[14] As far as the application for leave is concerned, the issue of whether or not the evidence in the District Court was sufficient for the judge to conclude that the dogs could be identified was central to Mrs Power’s appeal before me. My conclusion was the learned Judge’s analysis of the evidence could not be faulted. Apparently the issue has since been ventilated again at the rehearing before Judge Johns.6
[15] In any event, the issue about whether there was adequate evidence that Shiloh and Bear were the attackers is not a question of law of general or public importance. It is a factual issue that has already been considered by three judges, all of whom have drawn the same conclusion.
[16] It follows that I also consider that the application for a stay of execution should be dismissed. Any prospect of a grant of special leave by the Court of Appeal
is remote, at best.
6 See paragraph [23] of my decision dated 19 July 2011, and paragraph [19] of Judge Johns’
decision dated 2 July 2014.
[17] All applications are declined accordingly.
Rebecca Ellis J
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