The Queen v Alanzo Sheriff
[2002] NZCA 131
•13 June 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA264/01 |
THE QUEEN
V
ALANZO SHERIFF
| Hearing: | 13 June 2002 |
| Coram: | McGrath J Williams J Salmon J |
| Appearances: | No appearance for Appellant B J Horsley for Crown |
| Judgment: | 13 June 2002 |
| JUDGMENT OF THE COURT DELIVERED BY MCGRATH J |
The applicant for leave to appeal, Mr Sheriff, was convicted by a District Court Judge on a charge of intentionally obstructing a constable acting in the execution of his duty contrary to s23(a) of the Summary Offences Act 1981.
The context of the charge was that at the time of the offending the applicant was on bail having been charged with assaulting his brother. A condition of his bail was he not go to his brother’s address. The applicant wanted, however, to get some gear from his brother’s place and went there to that end.
The District Court Judge found that the Police were called to the brother’s home to deal with the apparent breach of bail terms. On arrival the applicant was arrested for breach of his bail and given his rights. He was handcuffed and pepper spray was used to subdue him. The Judge found, preferring the evidence of members of the police to that of the applicant, that the actions of the police were reasonable in light of the applicant’s aggressive reaction and refusal to cooperate.
The applicant had originally been charged with resisting a constable in the execution of his duty. The Judge substituted the charge of obstruction during the hearing taking the view that it was a lack of cooperation that had been shown rather than a positive attempt to frustrate the police by resistance. He convicted the applicant on that charge and ordered him to come up for sentence if called upon.
The applicant appealed to the High Court. Two issues were raised on his behalf. The first was that intent to obstruct had not been proved. The High Court Judge was satisfied however that the requisite intent had been shown. The second ground advanced concerned the change to the charge part way through the District Court hearing. Counsel pointed out that the Judge had failed to give the applicant an opportunity to plead to that charge under s43(3)(c) of the Summary Proceedings Act 1957. The High Court Judge accepted that proposition was correct but held that it did not vitiate the conviction. The appellant’s case had of course been that he was not guilty of either charge. The Judge applied s204 of the Act which directs the Court not to set aside a conviction for procedural irregularity unless it had led to a miscarriage of justice. In the Judge’s view it had not. That disposed of the appeal against conviction. He also took the view that the sentence was extraordinarily lenient and that there was no question of the High Court discharging under s19 of the Criminal Justice Act. Accordingly the appeal against sentence was also dismissed.
The applicant sought to appeal from the High Court’s decision to this Court and has filed a document headed “Notice of appeal/or Application for Leave to Appeal by Person Convicted”. In it he specified the grounds as inadequacy of counsel who did not call a witness and had not informed the applicant about the possibility of diversion. Following unsuccessful attempts to contact him by letter the application was given a hearing date by the Registry of 16 May 2002, the applicant being notified on 1 May 2002. A note was received from him on 8 May saying he did not have time to prepare himself for the hearing at which he would be representing himself. That fixture was accordingly vacated and another allocated for today. The applicant was notified on 16 May by letter of this fixture.
Since that letter was sent the applicant has telephoned the Acting Registrar from Invercargill and said he wanted the fixture put off. He was told that could not be done over the telephone and his response indicated he was unlikely to be present in Court today. He also said he had been refused legal aid for the appeal.
Clearly the applicant knows of today’s fixture and has elected not to attend the Court. We must therefore deal with what is necessarily an application under s144 of the Summary Proceedings Act for special leave to appeal without his assistance. Under s144(3) to grant special leave we must be of the opinion that there is a question of law involved in the appeal of general or public importance or which for some other reason should be submitted to the Court for hearing and decision.
The grounds specified in the application were not argued in the High Court and cannot be raised in this Court as they do not qualify under the terms of s144(3). The only question of law that can possibly arise is that put to the High Court. It concerned the procedural irregularity in failing to ask the applicant to plead to the substituted charge. The High Court Judge, as we have said, applied s204, and dismissed the appeal as no miscarriage of justice resulted.
There is nothing in that aspect, nor in any other, of the High Court decision that warrants a second appeal in terms of the statutory test.
Leave to appeal is accordingly refused.
Solicitors
Crown Law Office, Wellington
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