Timmins v The Queen - [2020] NZCA 410

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA335/2020
[2020] NZCA 410

BETWEEN	BENJAMIN HARRY TIMMINS Applicant
AND	THE QUEEN Respondent

Court:	Gilbert, Thomas and Dunningham JJ
Counsel:	Applicant in Person S E Trounson for Respondent
Judgment: (On the papers)	11 September 2020 at 2 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined for want of jurisdiction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

More than 23 years ago, on 26 February 1997, Mr Timmins was convicted in the District Court at Whanganui on three charges of unlawful possession of a weapon. He was sentenced that day to three months non-residential periodic detention and orders were made for the destruction of the firearms. Mr Timmins had the right to appeal to the High Court against conviction and sentence under s 115 of the Summary Proceedings Act 1957. This right was exercisable by filing a notice of appeal in the High Court within 28 days.[1] Mr Timmins did not exercise this right at that time.
[1]Summary Proceedings Act 1957, s 116.
Some 17 years later, in 2014, Mr Timmins says he filed an appeal against conviction in the Whanganui District Court. No record of this has been found. In any event, Mr Timmins says the District Court refused to hear his appeal. This is unsurprising because the District Court has no jurisdiction to hear appeals from its own decisions.
It was not until July 2018, nearly four years later, that Mr Timmins filed an appeal against conviction in the High Court (the correct appeal court). By then, the appeal was more than 21 years out of time.
On 25 June 2020, Simon France J declined to extend the time within which to appeal.[2] The Judge proceeded on the basis most favourable to Mr Timmins that the relevant period of delay was from the date of the conviction in February 1997 until October 2014 when the appeal was initially filed in the District Court.[3] The Judge considered the delay was “excessive by any measure” and not adequately explained. The Judge said it would be difficult to revisit relevant matters after such a long delay. Moreover, the arguments Mr Timmins wished to raise did not go to the correctness of the convictions.[4] Because no extension of time for an appeal was granted, the Judge stated:[5]
As regards the status of the criminal conviction, matters are therefore at an end.
[2]Timmins v New Zealand Police [2020] NZHC 1452.
[3]At [10].
[4]At [12].
[5]At [13].
Mr Timmins now applies for leave to appeal against this ruling.
Any appeal to the Court of Appeal in the present case is governed by s 144 of the Summary Proceedings Act:
144 Appeal to Court of Appeal
(1)Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZCA 410
Decision Date: 11 September 2020 at 2 pm

CaseChat Overview and Summary

The case of Timmins v The Queen involves Mr. Benjamin Harry Timmins who had originally been convicted in 1997 of unlawful possession of a weapon by the District Court at Whanganui. Despite his right to appeal under the Summary Proceedings Act 1957, he did not appeal within the required timeframe. Over a decade later, he claimed to have lodged an appeal in 2014, though no record of this exists. Finally, in July 2018, he filed an appeal in the High Court, which was dismissed for being out of time. The High Court had declined to extend the appeal period, leading Mr. Timmins to seek leave to appeal to the Court of Appeal.

The primary legal issue before the Court of Appeal was whether it had jurisdiction to hear an appeal against the High Court's refusal to extend the time for filing an appeal notice. The Court had to determine whether such a refusal constituted a "determination of the High Court on a question of law arising in any general appeal" under Section 144 of the Summary Proceedings Act. The Court referenced previous cases, particularly Taufoou v Department of Labour, to clarify that the Court of Appeal does not have jurisdiction over interlocutory decisions regarding extensions of time for filing an appeal notice.

The Court of Appeal held that it did not have jurisdiction to entertain Mr. Timmins' application for leave to appeal. The reasoning was grounded in the interpretation of statutory provisions that distinguish between substantive appeals and interlocutory decisions, such as those involving extensions of time. The Court concluded that the High Court's refusal to extend the time for filing an appeal notice did not constitute a "determination" within the meaning of Section 144 of the Act. As a result, the application for leave to bring a second appeal was declined.

In summary, the Court of Appeal declined the application for leave to bring a second appeal against the High Court's decision, finding it had no jurisdiction to do so. This decision underscores the Court's limited jurisdiction over interlocutory matters concerning the extension of time for filing appeals under the Summary Proceedings Act.

Orders