Roncelli v Police
[2015] NZHC 1967
•18 August 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000026 [2015] NZHC 1967
BETWEEN CLAUDIO RONCELLI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 18 August 2015 Appearances:
Appellant in person
D L Elsmore for CrownJudgment:
18 August 2015
ORAL JUDGMENT OF DUNNINGHAM J
[1] This is an appeal against conviction of two charges of trespass and one charge of assault of a constable acting in execution of his duty.1
[2] The appeal was originally scheduled to be heard on 9 July 2015. Mr Roncelli did not appear, despite being notified of that date. Gendall J, out of abundance of caution, adjourned the hearing to today, 18 August 2015 and directed him to file written submissions three working days prior to the hearing date. No such submissions have been filed and Mr Roncelli has not appeared at today’s hearing date.
[3] I therefore have to deal with the matter in the absence of either his appearance or any written submissions from him.
[4] The first issue which arises is that this is a matter which requires leave to appeal. Mr Roncelli has a right of first appeal. He had 28 days to exercise his right
1 Police v Roncelli DC Christchurch CRI-2012-009-010468, 4 July 3014.
RONCELLI v NEW ZEALAND POLICE [2015] NZHC 1967 [18 August 2015]
from the date sentence was passed. The notice of appeal was filed 243 days after the date of sentence. It is obvious that this does not come within the statutory timeframe. However, this is not necessarily determinative as the Court does have jurisdiction to extend time upon the application of the appellant.
[5] The relevant principles governing the exercise of the discretion to extend the time for appeal under s 123 are set out in the decision of Cleggs Ltd v Department of Internal Affairs as follows:2
(a) That the onus is on the applicant to show special circumstances why the decisions and sentences should not stand;
(b) That the discretion is given essentially for the purpose of avoiding miscarriages of justice;
(c) That all the circumstances of the particular case should be considered in deciding whether sufficient grounds have been shown; but
(d) That one of the matters which must be established is that there is a real likelihood that an appeal would succeed if leave is granted; some of the authorities going to the stage that the likelihood must extend to the point of establishing a probability of success.
[6] There is also onus on the appellant to provide some explanation as to why the appeal was filed late.
[7] The appellant has not provided any submissions on why leave should be granted and it is apparent that leave to appeal out of time will not be granted as of right. With nothing further from the appellant, when he bears the onus, I can dismiss the appeal at this point in time.
[8] However, one of the purposes of the discretion is to avoid a miscarriage of justice. For present purposes, therefore, I record that I have surveyed the District Court decision and the evidence on which the Judge relied to determine whether a
miscarriage might have occurred.
2 Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984 at
2115.
[9] Nothing in the judgment of Judge Saunders strikes me as being in obvious error. There is evidence on which convictions on each of the three charges could be entered.
[10] Mr Roncelli’s primary defence was a misguided belief that he was still an owner of the property in question and the victim of a fraud. There was nothing in the evidence to support that belief. He also challenged the constable’s evidence of events on 19 September 2013 when he was alleged to have assaulted the constable. However, the Judge made clear findings of fact dismissing Mr Roncelli’s recollection of events and preferring those of the constable.
[11] There is no reason raised to go behind those findings.
[12] In all the circumstances, leave to appeal is declined and the appeal is dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy to: Appellant
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