Ross v Police

[2012] NZHC 115

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-43 [2012] NZHC 115

KENNETH JAMES ROSS

Applicant

v

NEW ZEALAND POLICE

First Respondent

COMMERCE COMMISSION

Second Respondent

Hearing:         10 February 2012

Counsel:         B J Hesketh for Appellant

N Flanagan for Respondents

Judgment:      10 February 2012

(ORAL) JUDGMENT OF LANG J

[on application for leave to appeal to Court of Appeal]

KENNETH JAMES ROSS V NEW ZEALAND POLICE HC HAM CRI-2010-419-43 [10 February 2012]

[1]      In   or   about   October   2006   the   applicant,   Mr   Ross,   approached   the management of Hamilton International Airport with a proposal to stage an air show at the airport over the weekend of 7 to 9 March 2008.  The Airport Authority took up the proposal and over the next few months it worked with Mr Ross in endeavouring to arrange for the air show to be held.  Ultimately, that did not occur and this led to significant litigation in this Court and the District Court.

[2]      The Commerce Commission and the police laid a large number of charges against Mr Ross under both the Crimes Act 1961 and the Fair Trading Act 1986.  In broad terms, they alleged that Mr Ross had made false and/or misleading statements to a variety of persons, including the Airport Authority, sponsors and the public.  Mr Ross defended the charges, but after a hearing that occupied 15 sitting days and

spanned four weeks, Judge Spear found a total of ten charges proved.1   Five of these

were under the Crimes Act 1961, and the other five were under the Fair Trading Act

1986.   On 30 March 2010, after hearing submissions from both parties, the Judge sentenced Mr Ross to nine months home detention and ordered him to perform 200 hours of community work.2

[3]      Mr Ross immediately appealed to this Court against both conviction and sentence.  The appeal came before the Court for the first time on 30 June 2010, when White J directed that the appeal was to be heard on 8 October 2010.  White J also made timetable directions requiring Mr Ross to file and serve written submissions by Friday 10 September 2010, and requiring the respondent to file and serve its written submissions by 24 September 2010.

[4]      Thereafter, Mr Ross applied for an adjournment of the fixture on several occasions.  These applications were refused, and the matter therefore remained listed for hearing before Cooper J on 8 October 2010.

[5]      At  this  hearing,  Mr  Ross  again  sought  an  adjournment,  but  the  Judge declined to grant it.   He exercised his discretion under s 133(1) of the Summary

Proceedings Act 1957 (“the Act”) to dismiss the appeal for want of prosecution.3   Mr Ross now applies for leave to appeal to the Court of Appeal against the dismissal of the appeal by Cooper J.

Relevant principles

[6]      There is no dispute regarding the test to be applied when considering whether or not to grant leave.  The statutory provision governing leave to appeal is s 144 of the Act, which relevantly provides:

144    Appeal to Court of Appeal

(1)     Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court  of Appeal,  the  Court  of Appeal  may  grant  special  leave  to appeal.

(2)     A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the  rules  of  that  Court,  and  the  High  Court  may  grant  leave accordingly  if  in  the  opinion  of  that  Court  the  question  of  law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

…

[7]      The leading authority in relation to the requirements that must be established before leave may be granted is the decision of the Court of Appeal in R v Slater.4   In that case the Court of Appeal confirmed that three broad requirements must be established.  They are:

a)        The identification of a question of law arising from the appeal in respect of which leave is sought.

b)The question must be one which by reason of its general and public importance or any other reason ought to be submitted to the Court of Appeal; and

c)       The  Court  must  be  of  the  opinion  that  the  matter  ought  to  be submitted to the Court of Appeal.

[8]      The Court of Appeal also emphasised the importance of each of these requirements when it said:5

Section  144  was  not intended to  provide a  second tier of appeals  from decisions of a District Court in proceedings under the Summary Proceedings Act.  Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subs (2) and (3) are met and leave to appeal is granted. Neither the  determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

The proposed question

[9]      Counsel for Mr Ross has formulated the proposed question as follows:

The question of law for the Court to consider is whether the applicant’s right to appeal according to law to a higher Court against the conviction and against the sentence has been prejudiced as a consequence of the fact that he was required to serve his sentence of home detention up to 6 October 2010.

[10]     The background to the question is that, although Mr Ross filed his appeal shortly after being sentenced in the District Court, for some reason the fact that he had done so was not communicated to the authorities responsible for putting in place and  monitoring  the  sentence  of  home  detention.    As  a  consequence,  Mr  Ross remained subject to the sentence of home detention from 30 March 2010, until the date upon  which  he  was sentenced  on  6  October 2010.   That  should  not  have happened, because S 124 of the Act provides that a sentence of home detention will

cease to run on the day a notice of appeal is filed.

5 At 222.

Question of law?

[11]     Mr Ross faces two significant hurdles in relation to the question that he wishes the Court of Appeal to determine.   The first is that I view the proposed question as essentially asking a question of fact.

[12]     Mr Ross’s right to appeal to this Court against conviction and sentence is undoubtedly a legal  right.    Similarly,  his  right  to  be  released  from  serving  the sentence of home detention immediately after he lodged his notice of appeal was also a legal right.  Whether or not the fact that he continued to serve his sentence prejudiced him in prosecuting his appeal is, however, a question of fact.  That this is so is demonstrated by the steps that Mr Ross would need to take to demonstrate the existence of prejudice.   He would need to establish factual grounds supporting his claim.  Some of these can be discerned from submissions that he has made in support of his various applications for an adjournment of the appeal.  Included in the alleged prejudice is the fact that for a lengthy period Mr Ross was unable to access to a large volume of documents from a lockup in Auckland.   Then, when he finally gained access to the lockup, the volume of documents in the lockup was such that he was unable to fit them all in his car to transport them back to Hamilton.  He also alleges that he was unable to gain the services of a lawyer, and that he was unable to prepare properly for the appeal by virtue of the restrictions placed on him by the sentence of home detention.

[13]     All of these are factual issues, as is any assessment as to whether, taken together, they prejudiced him in the prosecution of his appeal.  For this reason I have concluded that the proposed question does not amount to a question of law and instead is a question of fact.   Of itself, this is sufficient to prevent leave being granted.

[14]     The second problem for Mr Ross is that, in order for leave to be granted, the proposed question needs to be a matter of such general or public importance that this Court is of the opinion that it should be determined by the Court of Appeal.  If there was some suggestion that there has been a systemic failure by government agencies to release persons serving sentences of home detention once they have filed a notice of appeal, an issue of public or general importance might possibly arise.  There is nothing to suggest, however, that the problem that has arisen in this case is more than an isolated instance of miscommunication between the relevant agencies.

[15]     I have no doubt that this is a matter of considerable private importance to Mr Ross, but it does not come anywhere near being a question of general or public importance that would warrant the matter being referred to the Court of Appeal.

[16]     For these reasons, I have concluded that the application cannot succeed and must be dismissed.   I record my gratitude to Mr Hesketh, however, who has been prepared to accept assignment of what has been a very difficult matter and has done his very best for Mr Ross, albeit ultimately to no avail.

[17]     In reaching my conclusion, I have not overlooked a broad submission by Mr Hesketh to the effect that this Court should not countenance unfairness, particularly in the case of an unrepresented litigant.  It seems to me, however, that Cooper J went to some considerable pains to ensure that he granted Mr Ross a full hearing before exercising his discretion to dismiss the appeal.  That is evidenced by the manner in which he dealt with the application for an adjournment.  He dealt specifically with the issue of fairness and concluded that, rather than seeking to exercise his right of appeal, Mr Ross had instead occupied himself with reasons why the appeal should

not succeed.6

[18]     Finally, I also record that Mr Ross seeks a further hearing so that he can adduce evidence from further witnesses.  This, too, is a matter that Cooper J dealt

with.  Any attempt to adduce evidence at this stage would be problematic because of the need to establish that the evidence was not available at the time of the hearing in the District Court.  It is clear Cooper J questioned Mr Ross about this issue, and was not persuaded that any witness whom Mr Ross might now wish to call could be of assistance.7

Result

[19]     For these reasons, I have concluded that the application must be dismissed.

Lang J

Solicitors:

Crown Solicitors, Hamilton
Counsel:

B J Hesketh, Hamilton