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)

1. 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.

2. 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.  

3. 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. 

4. 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].

5. Mr Timmins now applies for leave to appeal against this ruling. 

6. 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 under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal: Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

   (2)A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

   (3)Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court, or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

7. There was no case stated for the opinion of the High Court under s 107 of the Summary Proceedings Act and there has therefore been no “determination” of the High Court on any such case.  Nor has there been any “determination of the High Court on a question of law arising in any general appeal”.  There has been no determination of any appeal because the High Court declined to grant the more than 21-year extension of time required for it.   

8. Putting to one side that leave of the High Court has not been sought, it is clear this Court has no jurisdiction to hear an appeal against a decision of the High Court refusing to grant an extension of time to file a notice of appeal.  The issue was put beyond doubt by this Court in Taufoouv Department of Labour.[6]  Richardson J, writing for the Court, stated:[7]

   The answer to the jurisdictional question turns on the meaning to be given to the phrase “determination of the High Court on a question of law arising in any general appeal” in the statutory context.  Section 115 confers a general right of appeal to the High Court against convictions and orders made in summary proceedings subject to the provisions of that section.  While s 116, if read on its own, may be open to the interpretation that a person is within the description of “the appellant under any general appeal” before he has filed [a] notice of appeal, subsequent sections in that part of the statute, eg, ss 119, 121 and 122, clearly employ the expression “general appeal” as meaning a substantive appeal.  More importantly s 123, which is concerned with extensions of time, carefully distinguishes between appellant and intending appellant and again between appeal and proposed appeal.

   We are satisfied that that same distinction carries over into s 144 and there is no jurisdiction to grant leave to appeal to this Court in respect of an interlocutory decision refusing (or granting) an extension of time for filing [a] notice of appeal.

   [6]Taufoouv Department of Labour [1981] 1 NZLR 573 (CA).

   [7]At 575.

9. The application for leave to appeal must accordingly be declined.  This Court has no jurisdiction to entertain it.

Result

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

Solicitors:
Crown Law Office, Wellington for Respondent