Te Aho v Police

[2010] NZCA 293

IN THE COURT OF APPEAL OF NEW ZEALAND

CA226/2010
[2010] NZCA 293

BETWEENMARK JAMES TE AHO

Applicant

ANDNEW ZEALAND POLICE

Respondent

Hearing:5 July 2010

Court:Ellen France, Stevens and Wild JJ

Counsel:Applicant in person

S B Edwards for Crown

Judgment:9 July 2010 at 2.30 pm 

JUDGMENT OF THE COURT

A            The application for special leave to appeal is declined.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]        Mark Te Aho was seen passing through a supermarket checkout with a loaf of bread, butter and a chicken.  When the store manager stopped Mr Te Aho, he found Mr Te Aho had paid for the chicken only.  Mr Te Aho was subsequently convicted of theft in relation to the unpaid items after a defended summary hearing.[1]

[1]      Police v Te Aho DC Wellington CRI-2009-085-7541, 15 December 2009.

[2]        Mr Te Aho unsuccessfully appealed to the High Court against his conviction.[2]  He then sought from the High Court leave to appeal to this Court.  Miller J declined to grant leave.[3]  Mr Te Aho now seeks special leave to appeal from this Court under s 144(3) of the Summary Proceedings Act 1957.

Basis of proposed appeal

[2]      Te Aho v Police HC Wellington CRI-2009-485-171, 17 February 2010.

[3]      Te Aho v Police HC Wellington CRI-2009-485-171, 13 April 2010.

[3]        Mr Te Aho’s complaint appears to be that police did not call all of the possible evidence of what had occurred at the supermarket.  In particular, other eye witnesses were not called, nor was video footage made available.  He also says he asked his lawyer to get the video footage but his lawyer advised him to plead guilty.   Mr Te Aho wants to argue that if this further evidence had been obtained, it would have shown that he did not commit the offence.

Discussion

[4]        Special leave under s 144(3) can only be granted if the proposed appeal raises a question of law that is of general or public importance or that, for some other reason, ought to be submitted to this Court.  The Court has emphasised the importance of meeting those requirements.[4]

[4]      R v Slater [1997] 1 NZLR 211 (CA).

[5]        We do not consider the proposed appeal raises any question of law.

[6]        The first point we make is that it was a matter for the police in this case how much additional investigation they undertook.  In dismissing the appeal against conviction, Clifford J observed that police had the “clear evidence” of the store manager that Mr Te Aho went through the checkout area with two items for which he had not paid.[5]  There was no issue about Mr Te Aho’s identity as he was arrested at the scene.  As Clifford J said:[6]

That, in the circumstances, the Police chose to rely on the direct evidence of the store manager and their own evidence from attending the scene, and did not seek to obtain relevant store video footage – if it existed – does not affect the validity of Mr Te Aho’s conviction.  Whether or not such store video existed at the time is unknown.  If it did exist, it is no doubt unlikely that it still exists.

[5] At [3].

[6] At [3].

[7]        Secondly, there is nothing before us to suggest the police had obtained the store videos, if indeed they existed, but not disclosed them.  It follows that this is not a case giving rise to any question of law about the scope of disclosure obligations.

[8]        Miller J dealt with both of these aspects in declining leave.  The Judge considered that the only question of law that might arise was whether there was an obligation to obtain and disclose the video footage.  Miller J said there was no such obligation at the time, nor was one imposed under the Criminal Disclosure Act 2008.  Rather, Miller J said the obligation under the Act is to disclose all relevant exhibits in the possession of the police.[7]  As we have noted, no question of failure to disclose arises.

[7]      See s 13(3)(e) and (f) of the Act.

[9]        Finally, as to the suggestion Mr Te Aho’s lawyer did not take steps to obtain the video footage as instructed, there is no evidence before us to support that claim.  Mr Te Aho was represented in the District Court and defended the matter.  There is nothing before us that would give rise to a concern that an instruction was given to this effect and simply ignored. 

[10]       Ultimately, Mr Te Aho’s complaint is a factual one.  He has exercised his right to appeal to the High Court and has had the sufficiency of the case tested in that forum.  We do not consider there is any basis for a further appeal to this Court.

Outcome

[11]       The application for special leave to appeal is declined.

Solicitors:

Crown Law Office, Wellington