R v Samoilova CA240/06

[2006] NZCA 478

IN THE COURT OF APPEAL OF NEW ZEALAND

CA240/06

THE QUEEN

v

NATALIA SAMOILOVA

Hearing:         16 October 2006

Court:            Glazebrook, Chambers and Ellen France JJ Counsel:  Applicant in Person

A M Powell for Crown

Judgment:      1 November 2006         at 11 am

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

R V SAMOILOVA CA CA240/06  1 November 2006

Application for special leave to appeal

[1]      Judge Ingram convicted Natalia Samoilova, the applicant, of assault under s 9 of the Summary Offences Act 1981.   The victim was Ms Samoilova’s neighbour, Anna Paul.  Judge Ingram fined Ms Samoilova $1,000.  Ms Samoilova appealed to the High Court.  Priestley J dismissed the appeal against conviction, but allowed the appeal against sentence.  He quashed the fine of $1,000 and substituted in its place a fine of $350: HC ROT CRI 2006-470-000005 24 April 2006.

[2]      Ms Samoilova then sought leave to appeal to this court under s 144(1) of the Summary Proceedings Act 1957, but on 16 June this year, Priestley J declined to grant leave.

[3]      Ms Samoilova now seeks from this court special leave to appeal pursuant to s 144(3) of the Summary Proceedings Act.  Under that subsection, as interpreted by this court in R v Slater [1997] 1 NZLR 211, Ms Samoilova must show that there is a question of law involved in the proposed appeal which, by reason of its general or public importance or for any other reason, ought to be submitted to this court for decision.

[4]      Ms Samoilova appeared for herself on the application for special leave, just as she did at the trial and at the  High  Court  appeal.    As  well  as  making oral submissions (through an interpreter), she also filed written submissions, which we have considered.   Those submissions were not prepared as a lawyer would have prepared  them.    They raise  a  number  of  matters, many of  which  do  not  come anywhere near meeting the s 144(3) test.

[5]      Essentially Ms Samoilova raises seven complaints.

Failure to provide an interpreter at status hearing

[6]      Ms  Samoilova  complains  that  Judge  Ingram,  who  presided  at  the  status hearing, “did not give [her] a Russian interpreter”.  We have a transcript of the status hearing.   The hearing was very brief.   A duty solicitor spoke on Ms Samoilova’s

behalf at the start of the hearing, but she rejected any further assistance from him. She advised the judge she intended to plead not guilty.  It is true she did complain about not having an interpreter.  Judge Ingram dealt with that complaint in this way: “The reason you don’t have an interpreter is because I asked  you if  you could understand English sufficiently to speak to me and you told me that you could.”  He might have added that she had also rejected the offer of free legal assistance.

[7]      In any event, the status hearing was, in the circumstances, no more than a call-over.  Ms Samoilova confirmed that she was pleading not guilty.  Accordingly, the judge allocated a fixture.  He also confirmed that there would be an interpreter available for the trial, and there was.

[8]      Whatever failing there may have been on the court’s part in failing to provide an interpreter at the status hearing – and we are by no means certain there was a failing – did not in any way affect Ms Samoilova’s rights, as no decisions affecting her   rights   were   taken   at   the   status   hearing,   save   that   the   judge   rejected Ms Samoilova’s application for trial by jury.  On the basis of High Court authority by which Judge Ingram was bound, the judge was right to decline the application for trial by jury.  And as we discuss in the next section of these reasons, we think those High Court authorities were right.

[9]      We are satisfied that, given the circumstances of this particular status hearing, there could be no complaint about the absence of an interpreter.

Breach of Bill of Rights, s 24(3)

[10]     Ms Samoilova’s next complaint was that she had been denied a trial by jury, contrary to the New Zealand Bill of Rights Act 1990, s 24(e).   That subsection provides that everyone who is charged with an offence shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for  more than  three months.    That  subsection  mirrors  s  66(1)  of  the  Summary Proceedings Act 1957.

[11]     The   offence   of   assault   carries   a   maximum   penalty   of   six   months’ imprisonment.   Prima facie, therefore, anyone charged with assault would have a right to trial by jury.  But that right is removed by s 43 of the Summary Offences Act, which provides that s 66 of the Summary Proceedings Act does not apply to assault charges.

[12]     The offence of common assault has never carried a right to trial by jury. Until 1970, the maximum penalty was three months’ imprisonment.  Section 2 of the Police   Offences   Amendment   Act   1970   increased   the   maximum   penalty  to six months’ imprisonment.  But Parliament made clear that the increase in penalty was not to convert common assault hearings into jury trials.   In the same Act, Parliament provided that the general entitlement to jury trial where the charged offence was punishable by imprisonment for a term exceeding three months was not to apply to a common assault charge: s 2(2).  When the Police Offences Act 1927 was  replaced  by the  Summary Offences  Act  1981,  both  those  provisions  –  the six month maximum and the exception to the general right to trial by jury – were rolled over.

[13]     The argument Ms Samoilova wants to run is in essence that s 24(e) of the Bill of Rights trumps or impliedly repeals s 43 of the Summary Offences Act, with the consequence that she was entitled to a jury trial.

[14]     This undoubtedly raises a question of law, but it is not one which ought to be submitted to this court, as it has no chance of success.  It has already been considered in no fewer than four High Court cases, all of which have rejected the submission that there is a right to trial by jury in common assault cases: Birch v Ministry of Transport (1992) 9 CRNZ 83, Reille v Police [1993] 1 NZLR 587, Tapena v Police (1993) 10 CRNZ 614, and Dreliozis v Wellington District Court [1994] 2 NZLR

198.  The Summary Offences Act has been amended on numerous occasions since

1993 (the year in which the last of those decisions was delivered); Parliament’s failure to repeal s 43 of the Act suggests that it has approved those decisions and sees s 43 as a “reasonable limit” on the general right to trial by jury, in terms of s 5 of the Bill of Rights.  The four decisions are not criticised in the two leading texts on the Bill of Rights.  Indeed, the authors of one of them give reasons as to why s 43 is a

“reasonable limitation” on the light conferred by s 24(e): Butler and Butler, The

New Zealand Bill of Rights Act: a commentary (2005) at [22.6.41].

[15]     Furthers, Ms Samoilova has advanced no reason as to why those authorities should be overruled.

[16]     In those circumstances, we decline to grant leave in respect of this question of law, which we consider settled by well-established High Court authority.

Breach of Summary Proceedings Act, s 117(2)

[17]     Ms Samoilova complains that the registrar of the District Court at Tauranga failed to comply with two provisions in s 117(2) of the Summary Proceedings Act. The relevant provisions are:

The Registrar shall send to the High Court Registry with the notice of appeal

- …

(c)       a certified copy of any entry in the Criminal Records kept pursuant to section 71 containing the conviction, sentence, or order;

(d)       subject to subsection (3), a copy of any note made by the District Court Judge or Justice or Justices of the evidence given at the hearing and of any questions of law raised at the hearing and of any submissions made by either party;…

[18]     Even  if  it  is  right  that  the District  Court  registrar  failed  to  send  on  the certified copy referred to in para (c), that would be of no moment in this case and would not give rise to a question of law meriting this court’s attention.

[19]     Ms Samoilova has misinterpreted para (d).  That paragraph is concerned with the substantive hearing.  The submissions Ms Samoilova says were not sent on were written submissions she had filed at the status hearing and earlier.  The District Court registrar was not bound to send those submissions to the High Court.  In any event, this does not give rise to a question of law meriting this court’s consideration.

Illegal subdivision

[20]     The genesis of the assault lies in a dispute as to who is entitled to use Ms Samoilova’s driveway.  The victim is a neighbour who claims the right to use the driveway, a claim Ms Samoilova disputes.  Ms Samoilova considers that the Western Bay of Plenty District Council has illegally granted permission “for [a] subdivision on [her] right of way”, which has left her property landlocked.   This illegal subdivision  is,  she  says,  a  result  of  “criminal  activity”  and  “collusion”  by  the council, the Tauranga Police, and a named legal firm.  That, she says, is “the real crime in the region” and is a question of general and public importance.

[21]     All this is completely irrelevant to the offence with which Ms Samoilova was charged, as Judge Ingram and Priestley J correctly observed.  That is not a question of law that arises on the facts of this case.

Credibility of witnesses

[22]     Ms Samoilova complains about the credibility of prosecution witnesses.  The assessment of witnesses’ credibility was a matter for the trial judge.  His assessment in that regard cannot be the subject of a second appeal.

Collusion of prosecutor with council officials

[23]     This  is  another  aspect  of  Ms  Samoilova’s  concern  about  the  illegal subdivision, as she terms it.  It is irrelevant in this case.  The council has nothing to do with the offending for which Ms Samoilova was convicted.

Judge Ingram related to a council officer

[24]     Ms Samoilova complains that Judge Ingram is a nephew of a named council official.  He was therefore not impartial, she submits.

[25]     It is completely irrelevant whether Judge Ingram is related to the named official, even if true.  This case had nothing to do with the council.  Judge Ingram was concerned solely with whether or not Ms Samoilova had assaulted Ms Hall.  It was completely irrelevant to that question whether or not the council had acted properly in granting consent to a subdivision back in 2004.

Conclusion

[26]     None of the matters raised warrants further attention from this court.

Solicitors:

Crown Law Office, Wellington