Power v The Queen - [2015] NZCA 397

IN THE COURT OF APPEAL OF NEW ZEALAND

CA580/2014
[2015] NZCA 397

BETWEEN	ANNE DE LA POER POWER Applicant
AND	THE QUEEN Respondent

Hearing:	17 August 2015
Court:	Ellen France P, Courtney and Clifford JJ
Counsel:	D R F Gardiner for Applicant Y Moinfar for Respondent
Judgment:	31 August 2015 at 3 pm

JUDGMENT OF THE COURT

A The application for an extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

In 2008 two dogs owned by Anne Power attacked a woman. Ms Power was subsequently convicted on charges under the Dog Control Act 1996.[1] Ellis J dismissed her appeal against conviction and allowed her appeal against sentence in part.[2] After a delay of some three years Ms Power sought an extension of time to apply for leave to appeal that decision. Ellis J refused to grant an extension of time. [3] Ms Power has now applied under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal Ellis J’s first decision.
[1]Police v Power DC Waitakere CRN-809-3662,56,57,58,07, 5 May 2010.
[2]Power v Police HC Auckland CRI-2010-404-351, 19 July 2011[the first High Court decision].
[3]Power v Police [2014] NZHC 2231 [the leave decision].
There may be a question over this Court’s jurisdiction to hear Ms Power’s application. In O’Byrne v Waimakariri District Council[4] and Douglas v R[5] this Court held that jurisdiction under s 144 arises only where there has been determination of the substantive appeal in the High Court; it does not apply to the refusal to grant an extension of time, which is an interlocutory matter. In neither case had the High Court actually determined the substantive appeal before refusing an extension of time to apply for leave. In Ludemann v R this Court queried whether that the same jurisdictional barrier existed where, as here, the High Court has determined the substantive appeal.[6]
[4]O’Byrne v Waimakariri District Council [2012] NZCA 374, [2012] NZAR 848 at [6].
[5]Douglas v R [2014] NZCA 219 at [6]–[7].
[6]Ludemann v R [2013] NZCA 531 at [10].
This point was not argued before us. However, we do not need to consider it because we are satisfied that the application could not succeed in any event. Special leave to appeal under s 144(3) could only be granted if this Court were satisfied that the proposed appeal raised a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.[7] It is clear that no such question arises in this case.

Background

The case in the District Court

[7]R v Slater [1997] 1 NZLR 211 (CA) at 214–215.

In March 2008 two dogs attacked a woman walking through the Riverhead Forest in Auckland. The next day dog control officers visited Ms Power who was then living in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Power v The Queen

Details

AGLC: Power v The Queen [2015] NZCA 397
Case: [2015] NZCA 397
Decision Date: 31 August 2015 at 3 pm

CaseChat Overview and Summary

In the case of Power v The Queen, Anne Power applied for an extension of time to apply for leave to appeal the decision of the High Court, which had dismissed her appeal against conviction for charges under the Dog Control Act 1996. This followed the conviction of Power for her two dogs attacking a woman in 2008. The initial application for leave to appeal was made out of time, and the High Court had previously refused to grant an extension of time for such an application. The Court of Appeal considered the application for special leave to appeal under section 144(3) of the Summary Proceedings Act 1957, which would allow the appeal if the Court were satisfied that the proposed appeal raised a question of law that was of general or public importance.

The court noted that the application for special leave to appeal was not timely, but proceeded to consider it nonetheless. The proposed questions of law related to the identification of the dogs, the reliability of the identification evidence, and whether the correct identification of dogs in prosecutions under the Dog Control Act 1996 was an issue of general and public importance. The Court found that the proposed grounds of appeal did not disclose any question of law arising from the decision of the High Court, and that Power was simply seeking to re-litigate the factual issue that had been determined in the District Court. The application for an extension of time to apply for leave to appeal was granted, but the application for leave to appeal was dismissed.

In conclusion, the Court of Appeal granted the application for an extension of time to apply for leave to appeal but dismissed the application for leave to appeal itself. The court found that the proposed grounds of appeal did not raise any question of law of general or public importance, and that Power was essentially seeking to re-litigate a factual issue that had already been determined by three judges. The court's decision affirms the importance of timely applications for leave to appeal and the need for such applications to raise questions of law of general or public importance.

Orders