Terry v Police HC Wellington CRI 2009-485-149

[2010] NZHC 937

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-149

T

v

NEW ZEALAND POLICE

Hearing:         15 June 2010

Appearances: Mr T   appears in person

Mr Snape appears for New Zealand Police

Decision:        15 June 2010

Reasons:        17 June 2010

JUDGMENT OF MALLON J

[1]      Mr T   pleaded guilty to and was convicted in the District Court on a charge of failing, without reasonable excuse, to file an electoral candidate’s return as required by s 86 of the Electoral Finance Act 2007.  His appeal to the High Court against his conviction was dismissed by me.  He now applies for leave to appeal to the Court of Appeal.  Having heard from Mr T   in support of his application for leave I dismissed his application and advised him that I would set out in a written judgment my reasons for doing so.  I now set out those reasons.

[2]      An appeal to the Court of Appeal is limited to questions of law and requires leave (s 144 of the Summary Proceeding Act 1957 applies, as neither the Electoral

T V NEW ZEALAND POLICE HC WN CRI-2009-485-149  15 June 2010

Finance Act 2007 nor the Electoral Amendment Act 2009 address the availability of appeals). The High Court may grant leave if, in its opinion, the question of law 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” (s 144(2) Summary Proceeding Act 1957).

[3] In my judgment delivered on 15 March 2010 I dismissed Mr T ’s appeal from the District Court on the basis that Mr T had made a deliberate and informed decision to plead guilty. Because of that I considered that he was not entitled to vacate his guilty plea. Although that point alone disposed of Mr T ’s appeal I went on to say that the basis on which he contended that he was not guilty of the charge (namely that the 2007 Act was repealed and was not saved by s 17 of the Electoral Finance Act 2009) was not a defence to the charge anyway. I also rejected Mr T ’s submission that he had been denied adequate facilities to prepare a defence (Mr T contending that he should have been permitted access to his brief case and to make his submission from the body of the courtroom rather than from the dock, although he had not asked for these things at the time).

[4]      Mr T   says that my judgment was wrong.   He says that it was wrong because there was a miscarriage of justice in his conviction.  He says there was a miscarriage because he was denied adequate facilities to prepare his defence.   He says it was not for him to have to request access to his brief case and to make his submissions from the body of the courtroom.  He says that the onus is on the police and he had the right to remain silent.  He says that while he is an “experience litigant capable of presenting submissions to the High Court and Supreme Court [with] over

20 years experience” he knows that “98% of the male population lack the same ability”. Mr T further says that it was not for me to reject his appeal on the basis of s 17 of the Electoral Amendment Act 2009. He says that it was not for me in the High Court to be a defender of mistakes made in the District Court.

[5]      For Mr T  ’s appeal to the Court of Appeal to succeed he would have to persuade the Court of Appeal that it was wrong that a miscarriage of justice does not arise if he “fully appreciates the merits of his position and makes an informed decision to plead guilty” and a conviction is entered on that guilty plea.  He would

then have to show that he has a defence to the charge (which would require him to show that the effect of s 17 of the 2009 Act was not as I had determined) or that he was denied adequate facilities to prepare his defence and that because of that he should not have been convicted.

[6] While these matters could be formulated as questions of law I am not of the opinion that, by reason of its general and public importance or for any other reason, they ought to be submitted to the Court of Appeal. The effect of s 17 of the Electoral Amendment Act 2009 is likely to have limited relevance since it relates only to the

2008 general election. The other matters Mr T raises are potentially of more general application. However Mr T has not raised any points that are seriously arguable such that the Court of Appeal should be asked to consider them. The test as to when a guilty plea may be vacated is well settled. The terms of s 17 of the Electoral Amendment Act 2009 are clear. The matters Mr T says denied him adequate facilities were rejected for the reasons set out in my judgment.

[7]      I note that Mr T   says that there is a factual error in my judgment in that he did speak with a duty solicitor.   As advised to Mr T   at the hearing on this application I do not see how that affects any of the grounds on which his appeal was dismissed.

[8]      For these reasons Mr T  ’s application for leave to appeal was declined.

Solicitors:

M Snape, Luke Cunningham & Clere, Wellington, email: [email protected]

Copy to:

Mr T  , Wellington

Mallon J