The Queen v Phillip Brendon Smits

[2002] NZCA 113

IN THE COURT OF APPEAL OF NEW ZEALAND CA413/01

THE QUEEN

V

PHILLIP BRENDON SMITS

Coram:	Keith J Blanchard J Anderson J
Counsel:	A G Speed for the Appellant A Markham for the Crown
Judgment (On the papers):	27 May 2002

JUDGMENT OF THE COURT DELIVERED BY KEITH J

1. Mr Smits was convicted in the District Court of using obscene language over a telephone station with the intention of offending the recipient.  His general appeal to the High Court was dismissed.  He then sought leave from the High Court to appeal to this Court on a question of law under s144(2) of the Summary Proceedings Act 1957.  Leave was refused and Mr Smits now seeks special leave to appeal from this Court under s144(3).  It was agreed that the matter be decided on the written submissions filed by counsel.

2. The proposed point on appeal presented in the applicant’s submission to us is that the District Court Judge misdirected himself in convicting the applicant since there was no or insufficient evidence to show he had an intention to offend the recipient.  That formulation by itself provides a reason why special leave cannot be granted.  As counsel for the applicant accepts, the matter of intention to offend was not raised in the general appeal to the High Court where Mr Smits was represented by counsel.  The appeal to this Court, in terms of s144, must be “against any determination of the High Court on a question of law arising in any general appeal”.

3. Secondly, there was in any event evidence before the District Court Judge on the basis of which he could properly find an intention to offend.  There is no possible question of law arising in respect of that matter.

4. Thirdly, no reason of general or public importance or any other reason for a second appeal has been identified;  see Waller v Hider [1998] 1 NZLR 412.

5. Finally, the applications for leave made to the High Court and to this Court were filed late. 

6. For all these reasons, the application for special leave is dismissed.

Solicitors:
Crown Law Office, Wellington