R v Nottingham CA235/03

[2003] NZCA 392

IN THE COURT OF APPEAL OF NEW ZEALAND

CA235/03

THE QUEEN

v

DERMOT GREGORY NOTTINGHAM

Coram:  Tipping J

Anderson J Glazebrook J

Counsel:Appellant in person J C Pike for Crown

Judgment (On the papers):     18 September 2003

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]    Mr Nottingham was convicted, after a defended hearing before two Justices of the Peace, of driving a motor vehicle in excess of 50 km/h in a restricted speed area. He was fined $230 and ordered to pay Court costs of $30. He appealed to the High Court and, in a judgment of 3 April 2003, Paterson J found for the appellant and quashed the conviction. This was on the basis of the failure by the Police to disclose the logbook entries relevant to the particular radar device covering the day subsequent to the offence. Mr Nottingham’s other grounds of appeal were rejected. Mr Nottingham applied to the High Court for leave to appeal to this Court against

R V DERMOT GREGORY NOTTINGHAM CA CA235/03 [18 September 2003]

the Judge’s findings in respect of certain of those other grounds. In a reserved judgment of 17 June 2003 Paterson J refused leave.

[2]    Mr Nottingham now seeks special leave to appeal to this Court but has narrowed the scope of the proposed appeal to one question only – whether there is an obligation on the Police to produce, prior to a defended hearing in a summary matter, prosecution briefs of evidence. Paterson J, in his judgment of 3 April 2003, had held that there is no obligation at law to provide briefs in advance in a case such as this and it was not an infringement of any of Mr Nottingham’s rights not to have received such briefs. He remarked that any change to the law in this regard, if warranted, should be made by Parliament and not the judiciary.

[3]    At the request of the parties this matter has been dealt with on the papers by members of the Court who have conferred and agreed upon this judgment.

High Court judgment refusing leave

[4]    Paterson J observed that s144(1) of the Summary Proceedings Act 1957 provides that leave is required for an appeal “against any determination of the High Court on a question of law arising in any general appeal”. Paterson J expressed the tentative view that the term “any determination of the High Court” in s144(1) refers to the ultimate determination of the appeal and not to findings on the path to that conclusion. As the point had not been fully argued, however, he made no final determination on that point. Indeed Crown counsel had accepted that the section appeared to give a right to seek leave to appeal such findings but submitted that the threshold to obtain leave when an applicant has already been acquitted must be high.

[5]    Paterson J therefore went on to consider whether leave should be granted. He considered that it could be a matter of general or public importance whether the Police should be obliged to produce briefs of evidence prior to trial in defended traffic prosecutions. He pointed out, however, that the matter had been addressed on more than one occasion by the courts and also by the Law Commission and the Criminal Law Reform Committee and that more than eleven years have passed without legislative change.  He concluded that in his view “a finding which is not

part of the ultimate determination of an appeal, on a question which has been before the Courts for some time and on which the legislature has not taken any action, cannot be a question of law of such general or public importance that it should be considered by the Court of Appeal”. Leave was therefore declined.

Submissions of the parties

[6]    Mr Nottingham submits that it is clear from s144 that an appeal is available by either party where there is scope to argue an important question of law of general or public importance. Paterson J in the course of his 3 April judgment made a determination that there is no legal obligation to provide briefs of evidence. That determination has the potential to affect thousands of other cases. It is, in his submission, also clearly of general public importance as it is fundamental to the defence of any charge that an accused be fully informed of the case against him or her well before trial. Mr Nottingham points to a number of legal decisions where it has been suggested that disclosure of briefs is desirable and to the Law Commission recommendations on criminal disclosure and submits that it is time for the Court of Appeal to consider this matter.

[7]    Mr Pike, for the Police, submits that the determination referred to in s144(1) is either acquittal or conviction or another order against the defendant. The determination of the High Court in this case was that the information be dismissed. Mr Nottingham does not seek to appeal against that determination whatever the basis of the dismissal. In any event, in his submission, it is not appropriate to grant leave  in this case for the reasons set out in Paterson J’s judgment.

Discussion

[8]    We do not find it necessary to determine whether there is jurisdiction to grant leave to appeal in summary matters where there has been an acquittal. This is because, even assuming there is jurisdiction, we do not consider that this is a case where leave should be granted.

[9]    The point of law Mr Nottingham seeks to argue was not, as the Judge pointed out, part of the ultimate determination of the appeal. The result of any further appeal can have no effect whatsoever on Mr Nottingham’s position. This would mean that the Court would be asked to decide what can really be seen as a hypothetical question posed in the abstract without reference to any point at issue between the parties. This is not in our view an appropriate role for the Court to perform.

Result

[10]Special leave to appeal to this Court is declined.

Solicitors:

Crown Law Office, Wellington