W v Police HC Hamilton CRI 2006-419-34
[2006] NZHC 855
•12 July 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI.2006-419-34
W
Appellant
v
POLICE
Respondent
Hearing: 12 July 2006
Counsel: Appellant in person
Ross G Douch for respondent
Judgment: 21 July 2006 at 4:00pm
JUDGMENT OF WILLIAMS J. [Application for leave to appeal to the Court of Appeal]
This judgment was delivered by
Hon. Justice Williams on
21 July 2006 at 4:00pm
pursuant to Rule 540(4) of the High Court Rules
……………………………..
Registrar/Deputy Registrar
Date: ……………………... / Time:………………………………..
The application for leave to appeal to the Court of Appeal against
Allan J’s judgment of 20 June 2006 is dismissed.
W V POLICE HC HAM CRI.2006-419-34 21 July 2006
Background
[1] On 6 March 2006 the appellant, Mr W , was convicted in the Hamilton District Court on a charge of driving whilst disqualified on 12 April 2005. He defended himself on that occasion. He was fined $400 plus costs of $130 and disqualified from driving for six months from 20 March 2006.
[2] Again acting for himself he appealed against that conviction but his appeal was dismissed by Allan J in a reserved decision delivered on 20 June 2006. Details of that judgment will be discussed later.
[3] He now seeks leave to appeal to the Court of Appeal against the dismissal of his appeal. This judgment deals with that application. (To facilitate dealing with the application expeditiously it was heard by a Judge on circuit in Hamilton rather than awaiting Allan J’s return).
[4] Mr W , who appeared for himself throughout this (and other) matters, made clear that, in the event this Court dismisses his application, he would seek special leave of the Court of Appeal to appeal his convictions.
Statutory provisions
[5] Mr W ’s general appeal to this Court was brought pursuant to the Summary Proceedings Act 1957, s 115. However, this application is to be determined under ss 144-144B of that Act which relevantly read :
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 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.
…
144A Appeal to Supreme Court
(1) With the leave of the Supreme Court, either party may appeal to the
Supreme Court against— (a) …
(b)a determination of the High Court … made in a general appeal; or
(c) a decision of the Court of Appeal on an appeal under section
144(1).
(2) Subsection (1) is subject to section 14 of the Supreme Court Act
2003 (which provides that the Supreme Court must not give leave to appeal directly to it against a decision made in a court other than the
Court of Appeal unless it is satisfied that there are exceptional
circumstances that justify taking the proposed appeal directly to the
Supreme Court).
144B Powers of Court of Appeal and Supreme Court on appeal
On an appeal under section 144 or section 144A to the Court of Appeal or the Supreme Court,—
(a)the court appealed to has the same power to adjudicate on the proceeding that the High Court had; and
(b)the same judgment must be entered in the High Court, and the same execution and other consequences and proceedings follow, as if the decision of the court appealed to had been given in
Question of law
[6] In his letter of 4 July 2006 (framed as his application for this Court’s leave to appeal under s 144) Mr W posed the question of law for determination in the Court of Appeal in the following terms :
On the day in court the Judge reserved his decision on weather [sic] or not a lawyer would have been available to the defendant at the time of conviction due to the fact of two witnesses being called and having a difference on the out come [sic] of the trial.
Upon receiving the note of the Judges decision it is quite clearly stated by the Judge that in his opinion that the witnesses may not have remembered or that they may not have been able to recall after the laps [sic] of time for he upheld the District Court Decision,
In my opinion what if the witnesses did recall or they did remember the out come would have been different, the Judge their for [sic] has upheld the decision upon his thoughts to weather or not someone could or couldn’t remember, I feel that the only persons capable to answer that question are the persons involved not anyone else. I feel that an injustice has been done by convicting someone on something one may think or assume.
Allan J’s judgment
[7] The Judge first set out (para [3]) Mr W ’s grounds of his general appeal as being :
a) A challenge to the District Court Judge’s factual findings;
b)A lack of legal representation in the District Court because Mr W was denied an opportunity to consult a lawyer for the hearing in that court and “as a result, he did not call two witnesses who may have strengthened the defence case” when a lawyer would have followed that course and secured an acquittal.
[8] The Judge then reviewed the factual background stemming from Mr W ’s being stopped by Police on 12 April 2004 when driving, despite being a disqualified driver. The Judge noted (para [4]) that Mr W contended he was unaware on that date that he was disqualified and accordingly contended the
Crown was unable to prove the necessary knowledge that he was driving while disqualified (Millar v Ministry of Transport [1986] 1 NZLR 660).
[9] The Judge then reviewed (para [5]) the “somewhat complicated history of disqualifications” on which Mr W contended his lack of knowledge was properly founded. The history included District Court hearings and the dismissal of an appeal on 6 October 2004. The narrative included the following (paras [11]-[13])
:
[11] On 30 March 2005 the appellant was apprehended by the police while driving a vehicle which proved to belong to his wife. The vehicle was initially impounded. The following day, the appellant and his wife met Snr Sergeant Davy at the Waikato Highway Patrol Base at Te Rapa. The appellant told Snr Sergeant Davy that he had been unaware the previous day that he was a disqualified driver, but that same morning (31 March) he had received written confirmation that the appeal had been dismissed on
6 October 2004, and that he was indeed disqualified. Snr Sgt Davy in evidence said that during the course of that meeting he checked the respondent’s computer records and found that the appellant was disqualified up to and including 14 April 2005. He further said in evidence that he made it quite clear to the appellant and his wife that that was the position.
[12] The police took no action against the appellant in respect of his driving on 30 March 2005, because there was a doubt as to the appellant’s knowledge of his disqualified status.
[13] The appellant was apprehended a fortnight later when driving another vehicle. That was the incident upon which the charge which has led to this appeal was based.
[10] The Judge then discussed the hearing of the appellant’s charge in the District
Court, describing its outcome as turning upon “the appellant’s state of mind on
12 April 2005” (para [14]). In particular, he discussed Mrs W ’s evidence in the District Court of making inquiries prior to 31 March 2005 of the District Court and the Land Transport Safety Authority as to the date her husband’s disqualification ended. She said the result of the information she was given by those authorities was that the disqualification terminated on either 9 or 12 April 2005. Allan J described Mrs W ’s evidence (para [16]) as :
…. somewhat inconclusive, possibly because the appellant and his wife did not accept that they had been advised by Snr Sgt Davy that the disqualification continued until 14 April. Indeed, on their account of matters, the Senior Sergeant did not address the period of current disqualification at all; rather, according to them, he advised them that a
further period of disqualification, arising from a conviction for driving while disqualified imposed in the District Court on 22 February 2005, was to commence with effect from 14 April 2005 (that conviction was overturned in this Court on 13 March 2005 following an appeal at which the appellant appeared in person).
[17] According to the appellant and his wife, Snr Sgt Davy’s concern was not with the immediate period between 31 March and 14 April, but rather about the next period of disqualification and the need for the appellant to obtain a suspension of that period of disqualification pending the outcome of his appeal, if he proposed to drive after 14 April.
[11] The Judge then summarised the evidential conflict requiring resolution by the
District Court Judge in the following terms :
[18] Judge MacDonald was therefore required to resolve two conflicting accounts. Snr Sgt Davy said that he was focused on ensuring that the appellant and his wife knew that the appellant could not drive until 14 April, but that he did, in passing, refer also to a further period of disqualification due to take effect immediately after the current term finished. He accepted there may have been a brief discussion about the appellant’s entitlement to drive after that. On the other hand, Mr and Mrs W gave evidence to the effect that Snr Sgt Davy did not advise them at all about the current position; instead he focused upon the period after 14 April.
and the Judge’s resolution of that conflict in the following passage :
[19] The Judge resolved that conflict in favour of Snr Sgt Davy. He was impressed by the evidence the Senior Sergeant gave, and clearly accepted that the appellant was plainly advised that he was not entitled to drive until midnight on 14 April 2005. He was unable to determine precisely what Mrs W had ascertained as the result of her inquiries but said that “What she might have been told before really had no relevance at all”. Mrs W was uncertain about her dates, and uncertain even about the identity of the persons who had provided those dates.
[20] At [13] of his decision the Judge concluded that to a degree the appellant and Mrs W “did not want to accept the advice they were given … there was a reluctance to listen to what the true position was.”
[12] Allan J then noted (at [21]) that Mr W ’s submissions to him included that his wife became confused under cross-examination. Allan J commented that the District Court Judge was entitled to rely on the evidence as given and he, Allan J, was “in no position to revisit factual findings which were plainly open to him”.
[13] Allan J then turned to the ground of appeal that the District Court hearing was unfair because he was denied the right to legal representation.
[14] He reviewed Mr W ’s personal circumstances and a difference of view in the District Court as to whether legal aid was available for those charged with the offence Mr W faced.
[15] It is no part of the duty of this Court to resolve that issue but when the Legal Services Act 2000, s 6 permits legal aid to be granted in respect of “criminal proceedings in the District Court” and the definition of “criminal proceedings” does not exclude charges such as Mr W faced which are punishable by imprisonment, it may be that such persons could be eligible for a grant of aid.
[16] However, be that as it may, since Allan J accepted that Mr W ’s account of the way in which the matter was handled in the District Court was “broadly correct” (para [24]), nothing hangs on that as far as this appeal is concerned.
[17] The Judge then reviewed authority as to when adjournments should be granted where an unrepresented accused seeks such in order to instruct counsel but concluded that Mr W was not prejudiced by the absence of counsel given his “considerable experience at representing himself at court” on a number of previous occasions and the effectiveness of his self-representation as demonstrated by the notes of evidence.
[18] The Judge then summarised Mr W ’s further ground of appeal in the following way (at [27]) :
[27] Mr W ’s case is however, that whatever his degree of general competence might have been, he was prejudiced in that his lack of legal knowledge resulted in a deficiency in the defence case. He proposed to call evidence from his wife as to the inquiries she had made of the Court, and possibly of the Land Transport Safety Authority, regarding the date of cessation of his period of disqualification. Indeed, Mrs W did give such evidence, but the Judge indicated that, because it was hearsay, he could not take evidence of the dates provided by Court or LTSA officers to Mrs W . Mr W submitted that, had he known of the hearsay rule, he would have ensured that the officers concerned were summoned to give evidence.
[19] He then, in a section of his judgment critical to the application for leave to appeal, observed :
[28] I am satisfied that it is extremely unlikely that, had the officers been identified and summoned to give evidence, the outcome would have been any different. For a start, Mrs W ’s evidence about dates was in fact let in and considered by the Judge. It was not hearsay insofar as it concerned her state of mind and that of Mr W .
[29] Second, evidence from such witnesses would be most unlikely to have swayed the Judge. He found as a fact that Snr Sgt Davy had told the appellant and his wife, in the clearest of terms, that Mr W was disqualified until 14 April. That occurred after Mrs W said she was given earlier termination dates, and must have corrected any misapprehension under which the appellant and his wife might have been labouring.
[30] Third, it is most unlikely that any witness called from either the Court or the LTSA would have been able to give any worthwhile evidence at all. Had the case been adjourned and a legal aid lawyer been instructed, the case would have proceeded to trial more than a year after Mrs W had made her inquiries. The possibility of any staff member being able to remember an oral inquiry made so long ago about a matter of detail such as a disqualification date, is minimal. Indeed, it is highly unlikely that the persons to whom Mrs W spoke could have been identified. She was unable to indicate to the Court who she spoke to or even whether the persons concerned were employed by the Court or by the LTSA.
[31] Accordingly, even if counsel had been instructed, it is unlikely that appropriate witnesses could have been identified and if they were, it is highly improbable that any worthwhile evidence would have resulted.
[32] There is no discernible basis upon which it could properly be argued that the fact the appellant was self-represented in the District Court has resulted in a trial that was less than fair.
Submissions
[20] On the leave application Mr W both reiterated the grounds on which he had sought leave to appeal in his 4 July 2006 letter and effectively repeated the submissions made to Allan J.
[21] For the respondent, Mr Douch submitted that leave to appeal should not be granted as all of Allan J’s findings – and, indeed, the findings of the District Court – were properly based on law and were essentially decisions on fact. Thus, he submitted, no point of law was raised by Mr W sufficient to justify a further appeal.
Discussion and Decision
[22] On the question as to the fairness of Mr W ’s District Court trial in relation to his not having counsel, the view must be that Allan J’s observations and conclusions were wholly justified on the material available to him. Certainly no point of law arises out of that aspect of the matter sufficient to justify the granting of leave for a further appeal.
[23] Next, the nub of Mr W ’s principal point relates to the Judge’s observations about possible witnesses who, were they able to be identified, may have been able to give evidence on Mr W ’s behalf.
[24] In that regard, both the District Court Judge and Allan J correctly identified the crucial issue, namely the factual state of Mr and Mrs W ’s knowledge at the date of his driving that he was still a disqualified driver. Allan J correctly dealt with Mrs W ’s evidence on that point. He also correctly identified that the District Court hearing had been determined on a conventional credibility finding as between the contrasting versions of events and accordingly, there being ample evidential foundation for the District Court Judge’s view, no ground was made out for a court on appeal to interfere with the decision.
[25] Seen in that light, the comments about the possibility of identifying those persons to whom Mrs W said she had spoken must be seen as no more than an observation about the facts supporting the Judge’s view that, even had the evidence been available and called, it would have made no difference to the District Court Judge’s factual finding on questions of credibility. In addition, the views were expressed in the context of discussion about the fairness of Mr W ’s District Court trial. They were not a finding on the credibility of the potential witnesses.
[26] When that review is considered, it is plain that no question of law arises out of Allan J’s determination of Mr W ’s general appeal and certainly not one of general or public importance which ought to be submitted to the Court of Appeal. And there is no other reason appearing in the submissions or on the papers to justify that course.
[27] Mr W ’s case was one which was determined on the facts by the District Court. His appeal to this Court was essentially determined on the basis that there was ample factual foundation for the District Court’s findings and thus the matters raised by Mr W were insufficient to disturb the District Court’s conclusions. Similarly, the matters raised by Mr W on the leave application are largely factual. They raise nothing which would justify a further appeal.
[28] Mr W ’s application for leave to appeal against Allan J’s judgment of
20 June 2006 is dismissed.
………………………………..
WILLIAMS J
Solicitors:
Crown Solicitor, Hamilton
Copy for:
Mr B R W , 12 Burrows Place, Dinsdale, Hamilton (Fax: (07) 848 1006) Justice Allan, High Court Auckland
Judge MacDonald, District Court Hamilton.
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