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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ross v Police

Details

AGLC: Ross v Police [2012] NZHC 115
Case: [2012] NZHC 115
Decision Date: 10 February 2012

CaseChat Overview and Summary

In Ross v Police, Kenneth James Ross, the applicant, sought leave to appeal to the Court of Appeal against the dismissal of his appeal by Cooper J, which was dismissed for want of prosecution. The appeal arose from a criminal conviction and sentence imposed on Ross by Judge Spear in the District Court. The primary issue in this case was whether Ross's right to appeal was prejudiced by his continued service of a home detention sentence after filing a notice of appeal. Ross argued that the failure to release him from home detention prejudiced his ability to effectively prosecute his appeal. The legal issues before the court were whether the proposed question constituted a question of law and whether it was of sufficient general or public importance to warrant referral to the Court of Appeal.

The court found that the proposed question was essentially a factual one, rather than a question of law. It was a matter of fact whether Ross's continued service of home detention prejudiced his appeal, and required factual evidence to support any claim of prejudice. The court also held that the issue did not possess the general or public importance necessary to warrant referral to the Court of Appeal, as it appeared to be an isolated incident of miscommunication between agencies rather than a systemic problem. The court was satisfied that Cooper J had ensured a fair hearing for Ross and had properly considered the issue of fairness in the context of an unrepresented litigant. Consequently, the application for leave to appeal was dismissed.

Orders