W v Police HC Hamilton CRI 2008-419-14

[2009] NZHC 255

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2008-419-000014

BETWEEN  W

Appellant

ANDPOLICE Respondent

Hearing:         4 March 2009

Appearances: Appellant in person

A-M Beveridge for Respondent

Judgment:      4 March 2009

JUDGMENT OF COOPER J

Solicitors:

Almao Douch, Crown Solicitors, PO Box 19173, Hamilton 3244

Copy to:

Barry Raymond W  , 66 Sunnyhills Ave, Glenview, Hamilton

W V POLICE HC HAM CRI 2008-419-000014  4 March 2009

[1]      One of the matters in this morning’s Chambers List was the application that has been received from Mr W   in which he seeks leave to apply to the Court of Appeal against a decision made by Asher J.  I have heard the parties on that and some related issues.

[2]      The decision in question dismissed Mr W  ’s appeal against a decision of Judge Hole delivered on 26 February 2008. Asher J did not inquire into the merits of the appeal and simply dismissed it when Mr W   failed to appear.

[3]      In order for this Court to grant leave to an intending appellant to appeal to the Court of Appeal the criteria in s 144(2) of the Summary Proceedings Act must be satisfied.  That means that this Court must be of the opinion that 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.  This case is hardly in that category.   On the face of it, it was simply a case where the Judge dismissed the appeal for non-prosecution, the appellant not having appeared on the scheduled day.

[4]      I  have  considered  whether  the  appeal  can  be  reinstated.    Mr W   maintains that he did not receive notice of the hearing date, although he did receive notice of Asher J’s decision dismissing the appeal.  There is no affidavit to that effect on the file and it is unclear in any event, as to whether this Court has any power to re-instate the appeal.  Assuming for the sake of argument that there is such a power, it would not be appropriate, however, for it to be exercised in the circumstances of this case.  I say that because although the appeal was apparently under s 115 of the Summary Proceedings Act, that being the only section which could have applied the appeal, such appeals may only be made against a decision of the District Court determining the information.

[5]      The  argument  run  before  Judge  Hole,  which  he  rejected,  was  that  the prosecution should be stayed because of systemic delays.  That followed a series of adjournments of the prosecution in the District Court because of a relevant appeal to the Court of Appeal, also lodged by Mr W  .  I understand that that appeal was

disposed of at some stage last year although it had been commenced some years earlier.

[6]      Nevertheless,   Judge   Hole’s   decision   was   not   one   determining   the information.  It did not result in a conviction, nor was there any order in the nature of those set out in s 115(1)(b) of the Summary Proceedings Act.

[7]      In the circumstances I am satisfied that leave should not be granted to appeal to the Court of Appeal and nor should this Court, assuming it has the power, re- instate the appeal.   None of that may matter very much because the appellant has now  appealed  from  Judge  Cadenhead’s  decision  convicting  him  on  the  charges which Judge Hole declined to stay.  That will give an opportunity for Mr W   to pursue arguments concerning the stay, should he wish to do so.  I have indicated to him that the better course for him to have followed would have been to make an application for review.  However, I am not sure that he understood my observations to that effect.

[8]      Mr W   has used the opportunity of the mention of his application for leave to appeal to the Court of Appeal this morning to seek relief in respect of the disqualification.   He says that on previous occasions when  he  has  been  in  this position Courts have “returned his licence” pending resolution of the appeal.   He says, although not on oath, that unless the disqualification is suspended pending his appeal from Judge Cadenhead’s decision he will loose his job.   That is clearly a matter of concern if it is true, and he has produced a letter in which his employer states that if he fails to attend work he will be dismissed.   The difficulty arises, apparently, in relation to his return home from night-shift when he could only use a taxi at exorbitant cost.

[9]      The legislation seeks to provide for situations such as those Mr W   describes by the provisions in s 107(2)  of  the  Land  Transport  Act  1998.    That subsection provides that if it thinks fit, a District Court may on an application by a person who has appealed to the High Court under subs (1) or s 107 or s 115 of the Summary Proceedings Act 1957, defer the operation of the disqualification order pending determination of the appeal.  Under s 107(2)A if the District Court refuses

to defer the operation of the disqualification order pending the appeal, the person who applied for the disqualification order to be deferred may appeal to the High Court against the decision of the District Court.   Apparently, Mr W   made some sort of application to the District Court, but I am advised by the Registrar of this Court that the District Court Judge before whom it was placed, declined to deal with the application because it was not in proper form and in particular, because there were no affidavits filed in support of it.

[10]     The pattern of the legislation suggests to me that unless the matter were to come before this Court by way of an appeal from a decision of the District Court declining to defer the operation of the disqualification order, this Court lacks power to make any order to that effect.   I have not had a decision of the District Court declining the disqualification order placed before me.   Nor, of course, is there an appeal.

[11]     Indeed,  if  what  the Registrar  tells  me is  correct,  it  is  not  a case of  the application for deferral being declined, but rather, the application was simply not dealt with because of formal inadequacies.   If that is correct, then Mr W  ’s remedy is to make an application in proper form to the District Court.  He would be well advised to seek legal advice so that the application can proceed smoothly.  He needs to understand that he cannot expect to succeed on such applications unless he provides suitable evidence on oath, which explains the circumstances justifying the deferral.  As matters currently stand, there is no power that I can exercise to grant him the relief that he seeks.

[12]     Accordingly, I decline both the application for leave to appeal to the Court of Appeal and the application that he has made informally to me for a deferral of the licence pending the resolution of his latest appeal.  That matter needs to be pursued in the proper way in the District Court.