R v Terry

[2007] NZCA 455

IN THE COURT OF APPEAL OF NEW ZEALAND

CA403/07
[2007] NZCA 455

THE QUEEN

v

ROBERT FRANK TERRY

Hearing:18 October 2007

Court:O'Regan, Chisholm and Potter JJ

Counsel:Applicant in person

D J Boldt for Crown

Judgment:19 October 2007 at 2 pm

JUDGMENT OF THE COURT

LEAVE TO APPEAL IS REFUSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       Mr Terry seeks leave to appeal to this Court under s 144(3) of the Summary Proceedings Act 1957.  The conviction which is the subject of his proposed appeal was quashed by the High Court when it heard an appeal from the District Court at Greymouth.

[2]       Mr Terry is aggrieved that he did not succeed on one of his grounds of appeal in the High Court and wishes to complain against the Judge’s refusal to make an award of costs in his favour.

Background

[3]       On 4 September 2006, Mr Terry was convicted following a defended hearing by Judge A A Couch on a charge under s 3(1) of the Trespass Act 1980.  He was fined $300.  This arose from an incident in the Greymouth Courthouse on 22 February 2006.

[4]       Mr Terry appealed against conviction and in a reserved judgment of 11 May 2007 Panckhurst J quashed the conviction, did not order a retrial and refused Mr Terry costs.  

[5]       Although a number of grounds were advanced before him, Panckhurst J concluded that there were effectively three:  first, whether Mr Terry could have had an honest belief that he had to remain at the Court because he was required to sign a fresh bail bond.  Judge Couch found on the facts that Mr Terry could not have maintained such an honest belief and Panckhurst J found no basis to differ from his factual conclusion.

[6]       Secondly, that Mr Terry had been denied the opportunity to defend himself adequately because he did not have sufficient access to legal materials and therefore he had been denied his rights under s 24(d) of the New Zealand Bill of Rights Act 1990 (NZBORA).

[7]       Panckhurst J found that on the facts Mr Terry had been in a position to adequately present his defence and rejected this ground.

[8]       The third ground was that the course of action adopted by Greymouth Court staff had challenged Mr Terry’s “right to free speech in the Court’s debating chamber”.  Panckhurst J concluded that he could not be satisfied that the request for staff to warn Mr Terry to leave the foyer of the Court was reasonable and thus the conviction was quashed. 

[9]       No order for a rehearing was made and there was no order as to costs.

[10]     Mr Terry sought leave in the High Court to appeal to this Court.  It was refused by Panckhurst J following a hearing by way of telephone conference on 21 June 2007.

[11]     The question which the Judge discerned was whether Mr Terry had had adequate time and facilities to prepare a defence and, if not, whether there had been a breach of the NZBORA.  Panckhurst J held that there was no question of law which would warrant leave, assuming that he was competent to grant leave to appeal to this Court where a conviction had been quashed.

[12]     The other aspect raised was costs about which the Judge said:

[4]       Costs were declined effectively on the basis that, while the Judge’s approach to the case had been incorrect, the merits did not favour Mr Terry’s position, but because of the lapse of time and comparatively minor nature of the charge an order for rehearing was inappropriate.

[5]       Mr Terry wishes to contest this aspect.  Again, I am not satisfied that the costs ruling gives rise to a question of law, let alone a question which satisfies the test in s 144(3) of the Summary Proceedings Act 1957.

The leave application

[13]     Before us, Mr Terry, although purporting to rely on s 144(3), canvassed matters as if he had the right to a second general appeal, even when the conviction about which he complained had been quashed.

[14]     Mr Boldt contended that this Court lacked jurisdiction to hear the matter because, the conviction having been set aside, there was nothing for Mr Terry to appeal against.

Is there jurisdiction to hear the appeal?

[15]     Section 144(1) of the Summary Proceedings Act provides a right to apply for leave to appeal “against any determination of the High Court on a question of law arising in any general appeal”.  Is an order quashing a conviction a “determination” that gives rise to a right to seek leave to appeal to this Court?

[16]     Section 144B(a) provides that, on an appeal under s 144, the Court of Appeal has the same power to adjudicate on the proceedings that the High Court had. The High Court’s powers, with respect to a general appeal are set out in s 121, which provides:

121High Court to hear an determine appeal

(1)       The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.

(2)In the case of an appeal against conviction, the High Court may –

(a)    confirm the conviction; or

(b)    set it aside; or

(c)    amend it and, if the Court thinks fit, quash the sentence imposed and either impose any sentence (whether more or less severe) that the convicting Court could have imposed on the conviction as so amended, or deal with the offender in any other way that the convicting Court could have dealt with him on the conviction as so amended.

…

[17]     Section 121 provides a code as to what the High Court can do upon the hearing of an appeal.  With regard to an appeal against conviction, the Court only has the power to confirm, set aside or amend the conviction.  Where a conviction has already been set aside by the High Court there is nothing this Court can do.  If there is the ability for this Court to hear an appeal where a conviction has already been set aside, it would have to arise under s 121(1).

[18]     Section 121(1) provides a broad discretion “to hear and determine every general appeal and make such order in relation to it as the Court thinks fit”.

[19]     A right to a general appeal (to the High Court) arises upon conviction or the issuing of orders against the defendant in the District Court: Summary Proceedings Act, s 115(1).  Sections 115 to 115DA provide examples of general appeals: s 115(4).  These include appeals against conviction, sentence, name suppression and orders for costs against a defendant.  It is the imposition of adverse penalties/consequences against the defendant that give rise to the right of appeal, as was recognised by this Court in Ministry of Fisheries v Dowey [1998] 3 NZLR 5 at 8 where Henry J stated:

Section 115 contains the general right of appeal given to a defendant in proceedings governed by the Summary Proceedings Act.  It has a long history, and recognises the importance in the judicial system of giving a person subjected to its summary jurisdiction access to a superior Court for the purposes of reviewing adverse consequences resulting to that person.

[20]     As there are no continuing adverse consequences for Mr Terry, there cannot be a general right of appeal.  A decision to quash a conviction is not a “determination” that gives rise to an appeal.  This Court therefore does not have jurisdiction to hear this appeal.

[21]     The fact that in this case there are no orders that the Court could make in relation to the appeal (as the conviction has already been set aside) also points against the Court having jurisdiction to hear the appeal.  There is no right to appeal in situations where such an appeal would be futile (in the sense of lacking any utility).

[22]     Mr Terry also seeks leave to appeal against the Judge’s refusal to make an award of costs in his favour.  Section 115B of the Summary Proceedings Act provides a right of appeal against an award of costs, but only where costs have been awarded against the person appealing.  There is no general appeal against a decision not to award costs.  This aspect is also without jurisdiction.

[23]     For completeness we should note that, even if jurisdiction existed, nothing advanced by Mr Terry persuades us that the matter is of such public or general interest as to warrant a further appeal.

Result

[24]     Leave to appeal is refused.

Solicitors:
Crown Law Office, Wellington