Power v The Queen
[2015] NZCA 397
•31 August 2015 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA580/2014 [2015] NZCA 397 |
| BETWEEN | ANNE DE LA POER POWER |
| AND | THE QUEEN |
| Hearing: | 17 August 2015 |
Court: | Ellen France P, Courtney and Clifford JJ |
Counsel: | D R F Gardiner for Applicant |
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 a horse trailer near the pathway where the attack happened. They impounded two of her dogs, Bear and Shiloh, which matched the complainant’s description. Some seven weeks later the complainant was invited to identify the dogs in a “line-up” of eight dogs which included Bear and Shiloh. She identified Bear as one of the dogs that had attacked her. She was unable to positively identify the second dog but selected two of similar appearance, one of which was Shiloh.
In the District Court Chief Judge Russell Johnson heard evidence from the complainant about the appearance of the dogs that had attacked her and the area from which they had come, statements made by Ms Power about insecure floorboards in the dogs’ kennels and a statement said to have been volunteered by Ms Power (disputed by her) that she had checked Shiloh’s face for blood on the day of the alleged attack and seen nothing. The Judge was not inclined to put much weight on the dog line-up but was satisfied by the totality of the evidence that Bear and Shiloh had been responsible for the attack. He convicted Ms Power on two charges of being the owner of dogs that attacked a person[8] and two of failing to keep those dogs under control.[9]
[8]Dog Control Act 1996, s 57(1)(a) and (2).
[9]Dog Control Act, ss 52A(2) and 52(3).
Judge Recordon undertook the sentencing.[10] He ordered that the dogs be destroyed[11], imposed a fine of $1,000 and ordered Ms Power to pay reparation of $2,500 to the complainant and $32,204 to the Rodney District Council for the cost of maintaining the dogs for the two years they had been impounded.
Appeal to the High Court
[10]Police v Power DC Waitakere CRI-2009-90-11184, 31 August 2010.
[11]Dog Control Act, s 57(3).
On her appeal against conviction Ms Power asserted error by Chief Judge Johnson in finding that identification of the dogs had been proved beyond reasonable doubt. She appealed the sentence on the grounds that it was manifestly excessive. In a decision delivered on 19 July 2011 Ellis J dismissed the appeal against conviction, confirmed the orders for destruction and allowed the appeal against sentence to the extent of the order requiring payment to the Rodney District Council.[12]
[12]The first High Court decision, above n 2.
Ms Power did not seek leave to appeal against Ellis J’s decision immediately. Instead, in December 2011, she applied for a rehearing in the District Court. That application was refused by Judge Recordon on 31 January 2012.[13] A second application was refused by Judge Johns in July 2014.[14]
[13]Power v Police DC Waitakere CRI-2009-90-11184, 31 January 2012.
[14]Power v Police DC Waitakere CRI-2009-90-11184, 2 July 2014.
Finally, in August 2014 Ms Power sought an extension of time to bring an application for leave to appeal. The delay of some three years was attributed to the application for rehearing in the District Court. The proposed ground of appeal was that Ellis J had not given appropriate weight to the deficiencies in the identification evidence.
Ellis J refused to extend the time for applying for leave to appeal and indicated that, even had she granted an extension of time, she would have refused leave to appeal because the proposed ground of appeal did not raise a question of law of general or public importance, but rather a factual issue that had already been considered by three judges, all of whom had reached the same conclusion.[15]
Application for leave to appeal
[15]The leave decision, above n 3.
Ms Power’s application in this Court for special leave to appeal was filed seven days out of time. Ms Power did not provide an affidavit but did give an explanation for the delay in her notice of application. The Crown did not oppose the application on that ground and we therefore proceed to determine it.
The proposed questions of law were framed by Mr Gardiner, for Ms Power, as follows:
(a)Did the complainant accurately identify the applicant’s dogs, Shiloh (now deceased) and Bear as her attackers at the Animal Control Pound?
(b)If the identification is unreliable (Chief Judge Johnson for instance considered that if the prosecution relied on the identification evidence at the identification parade alone he would not have been in a sufficient position to make a finding that the dogs were the attackers) is that identification still relevant, alone or with other evidence, to support his ultimate conclusion (supported by Ellis J on appeal) that the dogs attacked the complainant?
(c)Is insufficient evidence to support inaccurate identification a question of law?
(d)Is correct identification of dogs in a prosecution under the Dog Control Act 1996 an issue which by reason of its general and public importance ought to be submitted to the Court of Appeal?
The question whether there is any or sufficient evidence to prove an element of the offence is a question of law. But it is not one that arises in this case. The Crown case at trial was mainly circumstantial. It was unnecessary that any one piece of circumstantial evidence alone was sufficient to prove that Bear and Shiloh were the dogs that carried out the attack. The Judge was entitled to consider the totality of the evidence, which he plainly did.
Ellis J undertook a careful review of the evidence on which Judge Johnson had reached his decision and concluded that the Judge had not made any error in his reasoning. It is, of course, Ellis J’s decision from which Ms Power seeks to appeal and the proposed grounds of appeal do not disclose any question of law arising from that decision. Ms Power is simply seeking to re-litigate the factual issue that was determined in the District Court.
The application for an extension of time to apply for leave to appeal is granted. The application for leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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