Walker v Police

[2014] NZHC 1790

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-000364 [2014] NZHC 1790

BETWEEN

MAXWELL IAN WALKER

Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing:	(on the papers)
Judgment:	30 July 2014

JUDGMENT OF VENNING J

DISMISSING APPLICATION FOR LEAVE TO APPEAL

This judgment was delivered by me on 30 July 2014 at 4.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

Copy to:            Applicant

WALKER v NZ POLICE [2014] NZHC 1790 [30 July 2014]

[1]      In a decision delivered on 6 June 2014 this Court dismissed Mr Walker’s appeal against conviction for behaving in a disorderly manner in a public place under s 4(1)(a) of the Summary Offences Act 1981.

[2]      Mr Walker now seeks leave to appeal to the Court of Appeal.

[3]      The first difficulty Mr Walker faces is that his application for leave is out of time. As relevant s 144 of the Summary Proceedings Act 1957 applies:1

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.

[4]      The decision was delivered on 6 June 2014. Any application for leave should have been filed and served by 30 June 2014.  Mr Walker’s application to the Court was filed on 8 July 2014.  It is out of time. There is no explanation for the delay.

[5]      More fundamentally, however, Mr Walker’s proposed grounds of appeal do

not meet the test for the grant of leave.

[6]      In R v Slater the Court held:2

Section  144  was  not  intended  to  provide  a  second  tier  of  appeal  from decisions   of   the   District   Court   in   proceedings   under   the   Summary

1      Criminal Procedure Act 2011, s 397.

2      R v Slater (1996) 14 CRNZ 189 (CA) at 193.

Proceedings Act. ... Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

[7]      Mr Walker seeks to appeal on the following grounds:

(a)      The record of the District Court hearing was faulty in that there are a number of inaudibles and there was an incomplete record of discussions between the Court and counsel.   Mr Walker also notes that an exhibit he had produced was apparently lost in the District Court.

(b)That he was not warned that the Judge intended to substitute the charge under s 4 of the Summary Offences Act 1981 for the charge he faced under s 3 of the Act.

(c)      The law in this area is deficient and unfair.

[8]      The transcript ran for some 80 pages.   In addition there were a further 25 pages  of  notes  of  evidence  taken  before  the  Registrar  as  one  witness  was  not available at the hearing.  Taken overall, the record is sufficient.  Mr Walker suggests critical discussions between the Judge and the police prosecutor and his counsel were not recorded.   He had the opportunity to address that issue on appeal to this Court.

[9]      As to Mr Walker’s suggestion that he produced a diagram showing his record of the relative position of the buses parked at the terminal, again that is a factual matter.  There was an exhibit of a map of the Matiatia Wharf area with notations on it produced in the District Court and before the Court for the appeal. Although it was produced by Mr McLaughlan it was put to him by Mr Walker’s counsel, Mr Cooper. This is in any event a factual issue.

[10]     No issue of law arises out of this first point.

[11]     Next, Mr Walker complains that he should have been warned that he could be found guilty of the lesser charge that he was ultimately convicted of.  Section 44 of

the Summary Offences Act 1981 is a complete answer to the proposed argument on this point.  There is no requirement for the Judge to give notice to the parties of his intention to convict of a lesser charge.  The elements of the offence must be proven. It is for the Judge to determine whether the elements of the lesser offence are proven. No issue of law arises.

[12]     Finally, on his last point Mr Walker submits that if that is the case the law is deficient and unfair.  But the statutory provisions are quite clear.  I accept counsel for the Crown’s submission this is self evidently not a question of law.

[13]     In summary the proposed points on appeal do not raise any questions of law for determination by the Court of Appeal.  On any view of it the issues Mr Walker seeks to raise fall well short of establishing any question that by reason of general or public importance ought to be submitted to the Court of Appeal for determination.

[14]     Fundamentally, however, the application is out of time, and no application for leave to appeal out of time is before the Court.

[15]     In the circumstances the application for leave to appeal is dismissed as being out of time.

Venning J