The Queen v Fatu

[2009] NZCA 161

IN THE COURT OF APPEAL OF NEW ZEALAND

CA216/2009
[2009] NZCA 161

THE QUEEN

v

SONNY FATU

Hearing:28 April 2009

Court:Robertson, Chisholm and Gendall JJ

Counsel:R J Laybourn for Appellant

S B Edwards for Crown

Judgment:5 May 2009 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed for want of jurisdiction.

REASONS OF THE COURT

(Given by Robertson J)

[1]       The appellant faces charges in the High Court at Hamilton alleging conspiracy with others to supply the Class A drug methamphetamine; conspiracy to sell the Class C drug cannabis; and conspiracy to supply the Class B drug morphine sulphate.  He appeals against the decision of Heath J, delivered on 2 March 2009, declining bail. 

[2]       A notice of appeal was filed on 17 April 2009.  Section 67 of the Bail Act 2000 requires that an appeal is filed within ten days from the date of the decision to be appealed against.  There is no provision for extension of time in the Bail Act and no express provision in other legislation which gives this Court jurisdiction to grant an extension.

[3]       The point was not taken at the hearing but came to attention in the course of the preparation of a judgment.

[4]       Counsel were permitted an opportunity to provide further submissions on this point.  Mr Laybourn accepted that there was no jurisdiction to hear the appeal.

[5]       Ms Edwards accepted there was no provision within s 67 of the Bail Act to extend time, in contrast to the express statutory provisions in ss 388(2) and 379A(5) of the Crimes Act 1961.

[6]       However, counsel noted that the Court of Appeal Criminal Rules 2001 applied to bail appeals (r 4(1)(d)).  The form of notice of appeal which must be used for a bail appeal in accordance with r 6 is prescribed in Form 4.  This Form includes the following question (at 5):

If your appeal or application is out of time, what are your reasons for saying that the court should nevertheless consider your appeal?

[7]       Rule 11 provides that an application for an extension of time may be included with a notice of appeal by completing the relevant part of the form, while Rule 12 provides that a notice of appeal in prescribed form must be treated as if it contains an application for an extension of time.

[8]       The Crown therefore suggested that the existence of these Rules, particularly the inclusion of the question on the prescribed form points (as a matter of fairness) towards the availability of this Court’s inherent jurisdiction to extend time for filing an appeal under s 66 of the Bail Act, even in the absence of an express statutory provision on the point.

[9]       We acknowledge the ingenuity, but are not satisfied that the jurisdiction exists. We are not attracted to an argument that jurisdiction which is not otherwise proved for can be rooted in a prescribed form in the Rules. 

[10]     The appeal is accordingly dismissed for want of jurisdiction.

Solicitors:
Crown Law Office, Wellington