The Queen v Neil Martin Clarke
[2000] NZCA 261
•4 April 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA472/99 |
THE QUEEN
V
NEIL MARTIN CLARKE
| Hearing: | 30 March 2000 |
| Coram: | Tipping J Doogue J Cartwright J |
| Appearances: | W M Johnson for Applicant J C Pike for Crown |
| Judgment: | 4 April 2000 |
| JUDGMENT OF THE COURT DELIVERED BY CARTWRIGHT J |
The applicant Neil Martin Clarke seeks special leave to appeal to this Court pursuant to the provisions of s 144 of the Summary Proceedings Act 1957. The applicant contends that there is a question of law which arises following the refusal to allow his general appeal against conviction and sentence on a charge laid in the District Court pursuant to s 58(1)(c) of the Transport Act 1962.
The applicant did not appear in person on the date assigned for the hearing of his application. Counsel, from whom he had sought advice, appeared however to seek an adjournment to enable the applicant to advance his application at a later date. The application for an adjournment was refused. Mr Johnson, being without instructions was unable to identify any question of law which would enable us to grant special leave to appeal.
The applicant was convicted following a summary hearing in the District Court at Wellington on 31 March 1999 on charges of careless driving and driving while the proportion of alcohol in his blood (275 milligrams) exceeded the legal limit. He was sentenced to 7 months periodic detention and 2 years disqualification from holding or obtaining a driver’s licence. He then appealed to the High Court against both conviction and sentence putting forward a range of points on appeal. The appeal against both conviction and sentence was dismissed.
The applicant then applied to the High Court pursuant to s 144 of the Summary Proceedings Act for leave to appeal to this Court and appeared in person before Fisher J on 12 November 1999. After again considering the various points advanced in support of his application the Judge said:
“The sole power remaining in the High Court arises pursuant to s 144 of the Summary Proceedings Act. Under that provision I can grant leave to appeal to the Court of Appeal but subject to major limitations. The first is that power is confined to identifying a question of law which must be capable of expression as a question of law. I have been able to decipher no such question of law in the present case despite the best efforts of the appellant. Even if I do, there would be the second hurdle to overcome which is that I would be entitled to refer the matter to the Court of Appeal in Wellington only if that were justified by virtue of the general or public importance or other reason which satisfied that course. Naturally, that is not a path to be lightly undertaken and I have heard nothing today which would have put this case into such a category.”
The application was dismissed and the periodic detention sentence reactivated. Since filing the present application for special leave to appeal, the sentence of periodic detention has been suspended pending the outcome.
We have considered carefully the issues which came before the Judge in the District Court and on appeal to the High Court. We find ourselves in agreement with Fisher J that there is no question of law of general or public importance which would justify granting special leave to appeal. Had we discerned any question of law we might have considered granting the adjournment to enable the applicant to brief counsel or to appear in person to address us. There being no such question, we dismiss the application.
It is necessary to fix the date and time at which the applicant must report to begin the sentence of periodic detention imposed by Moss DCJ in the District Court at Wellington on 31 March 1999. We have been informed that the applicant is not available to begin the sentence immediately. We make no comment concerning this, but fix 28th April 2000 as the date on which he must report at 6:00 p.m. to the Porirua Workcentre to begin the sentence of 7 months periodic detention.
Solicitors
W M Johnson for Applicant
Crown Law Office, Wellington
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