White v The Queen

[2004] NZCA 293

IN THE COURT OF APPEAL OF NEW ZEALAND

CA252/04

THE QUEEN

v

GRAEME RICHARD WHITE

Hearing:6 December 2004

Court:Hammond, Wild and Doogue JJ

Counsel:Applicant in Person

B J Horsley for Crown

Judgment:6 December 2004 

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS

(Given by Doogue J)

Introduction

[1]       The applicant seeks special leave to appeal under s 144 of the Summary Proceedings Act 1957 from a decision of the High Court by Fogarty J at Christchurch on 12 May 2004 dismissing an appeal against the applicant's conviction in the District Court for behaving in a disorderly manner in Montreal Street Christchurch on 28 May 2003.  Fogarty J refused special leave to appeal to this Court on 16 June 2004. 

[2]       The applicant advances three grounds in applying for special leave to appeal to this Court: 

1.The burden of proof was not discharged in the District Court hearing.  This matter wasn’t considered by the High Court judge during my appeal.

2.The District Court judge and High Court judge wrongly interpreted case law they deferred to.

Melser v Police 1967.

O’Connor v Police 1972.

Police v Christie 1962.

3.A necessity defence exists.

[3]       The principles applicable to such an application are well settled.  In R v Slater [1997] 1 NZLR 211, 215 this Court stated:

Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act.  Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified…are met and leave to appeal is granted.  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”.

In R v Candy (CA371/02, 25 February 2003) this Court stated (at paras 14-15):

It follows that the judgment of the High Court which the party seeks to challenge must have been asked to address the question.  It would be contrary to the policy of general finality of the first appeal to allow leave to bring a second appeal raising a new question of law not raised in the High Court.  Under the terms of s 144 leave to appeal to this Court may only be granted for a question of law 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 (s 144(3)).

It is also well-established that, before the High Court or this Court, in the exercise of its discretion, will grant leave or special leave to appeal, that Court will require to be satisfied that there is a tenable argument available on the question of law raised.

[4]       The application can be dealt with under the three grounds of appeal raised by the applicant. 

Burden of proof 

[5]       The applicant submits that the principal prosecution witness, a security guard, misled the Court and that he should not be convicted on the sole evidence of an unreliable witness.  The applicant seeks to revisit findings of credibility made in the District Court hearing.  Plainly this does not give rise to any question of law. 

Case law 

[6]       The applicant does not challenge the principles of law applicable.  He challenges the application of the principles of law to the circumstances of this case.  In those circumstances, there is no question of law arising from his challenge.

Necessity 

[7]       The applicant claims he was obliged to protest in the way that has resulted in his conviction by reason of s 66 of the Crimes Act 1962.  There is no evidentiary foundation whatever before the Court to support any defence of necessity, either by reference to s 66 of the Crimes Act 1962 or otherwise.  There is no suggestion of any imminent peril or death or serious jury or any other circumstance where it would be arguable that the defence could apply. 

[8]       Even if there is such a defence that could apply, it could not apply to the present case.  In this case, the applicant had many other means of protest available to him.  What he was convicted of was the manner in which his protest was exercised and not the fact that he was seeking to protest.  There is therefore no basis whatever upon which the defence would arise in the present case.

Result

[9]       The application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington