W v Police HC Wellington CRI-2010-485-11

[2010] NZHC 671

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-11

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 May 2010

Counsel:         Appellant in person

MWC Snape for Respondent

Judgment:      5 May 2010 at 10.30am

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 10.30am on the 5th day of May 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1]      Mr W   seeks leave to appeal to the Court of Appeal against a judgment of this Court delivered by Joseph Williams J on 1 April 2010.

[2]      Mr W   was convicted in the District Court on one count of theft under s 223(b) of the Crimes Act 1961.  The background is fully described in the judgment of Joseph Williams J at paragraphs [2] to [8] in terms which it is not necessary to

repeat here.  As noted in paragraph [9] of that judgment, the essential issue, both at

W V NEW ZEALAND POLICE HC WN CRI-2010-485-11  5 May 2010

first  instance  and  on  appeal,  was  whether  Mr W    had  a  claim  of  right. Essentially, Mr W  ’s claim was that he was entitled to retake possession of the vehicle which formed the subject of the charge, on the basis that he had sold the vehicle to the owner, Ms Davis, that she had not paid the full purchase price, and that she had given him the keys to retake possession.  That basis for a defence of claim of right was squarely before the District Court.  The Judge found that Mr W  ’s acts were dishonest and done without a belief that they were lawful and with the intention of depriving Ms Davis of the vehicle permanently.  The Judge also found that Mr W   knew Ms Davis had not consented to or agreed to return the car to him voluntarily.  She preferred Ms Davis’ evidence to that of Mr W  .

[3]      In this Court, Joseph Williams J noted a number of inconsistencies in the detail of the prosecution case but said that those were not material inconsistencies. He  noted  that  the  Judge  had  disbelieved  the  appellant  and  accepted  Ms Davis’ version of events, which was supported by Ms Tyndall.

[4]      As I explained to Mr W   in the course of the hearing, the test on an application for leave to appeal to the Court of Appeal is whether an error of law has been demonstrated.  Under s 144 of the Summary Proceedings Act 1957, this Court may grant leave only if in the opinion of this 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.

[5]      I explained to Mr W   that a second  appeal from  a decision of  the District Court is not available as of right.  The question for me must be whether there is a question of law involved and whether, if so, that 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.

[6]      In  support  of  his  oral  submissions,  Mr W    submitted  some  notes, (which I have considered following the hearing) in which he sought to identify a number of questions.  These are posed as follows:

Question

1.        Am I legally bound to comply with a deal I know nothing about?

2.Can I be forced to comply with a deal I know nothing about by the law?

3.Can this part of evidence be removed from the evidence legally because it had nothing at all to do with anything I know about?

Questions

1.Who has the right to set the price of the sale of a car, the current owner selling the vehicles or the buyer?

2.Do I have to sell my vehicle at the price set down by the buyer if that price is not correct as per agreed sale price set down by the current owner.

The agreed price set down by Mr W   for the sale of the Mazda to   Miss Davis,   was   $1500   to   which   $600   was   still   unpaid. Miss Davis flatly refused to pay Mr W   the remaining $600 outstanding.

Question

1.Does the person financing the sale of a car still retain ownership until the full amount has been paid back?

2.Does  the  person  holding  the  debt  have  the  right  to  direct  the direction of payment?

Questions

1.If Miss Davis refuses to pay the outstanding owed to Mr W  , does he have the right to ask for the Mazda back at that point?

2.If Mr W   has a right to ask for the return of his Mazda at the point that Miss Davis refuses to make any more payments on the debt owed, is it not therefore considered consensual if she hands Mr W   the keys?

[7]      All of those questions depend upon an acceptance of Mr W  ’s version of events, in preference to that of Ms Davis and Ms Tyndall.   Those questions do not, on the facts as found by the Judge, arise for consideration, and accordingly cannot form the basis of a question of law which should be submitted to the Court of Appeal.

[8]      Mr W   said in his oral submissions that the bottom line is that this case comes  down  to  credibility.     That  submission  is  correct.     It  is  also  fatal  to

Mr W  ’s argument.  It is not the function of the Court of Appeal to reconsider findings of credibility which have been made in the District Court, and reviewed on appeal to this Court.

[9]      For these reasons, leave to appeal is refused.

“A D MacKenzie J”

Solicitors:         Crown Solicitor, Wellington, for Respondent