Wiki v Police

[2018] NZCA 631

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA547/2018
 [2018] NZCA 631

BETWEEN	VICTORIA WIKI Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Winkelmann, Ellis and Whata JJ
Counsel:	Applicant in person J A Herring for Respondent
Judgment: (On the papers)	21 December 2018 at 2 pm

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

1. Ms Wiki pleaded guilty to one charge of wilful trespass and one charge of assault on a police officer.[1]  She appealed both conviction and sentence to the High Court.  Gordon J dismissed that appeal.[2]  She now seeks leave to bring a further appeal to this Court.[3]  Ms Wiki did not file submissions in support of her application by Friday, 9 November 2018, as she was required to do.[4]  We nevertheless address her application.

   [1]Police v Wiki [2018] NZDC 9729 [DC judgment].

   [2]Wiki v Police [2018] NZHC 2156 [HC judgment].

   [3]Criminal Procedure Act 2011, ss 237(2) and 253(3).

   [4]Wiki v Police CA547/2018, 15 October 2018 at [3].

2. Ms Wiki’s notice of appeal identifies the following issues:

   (1)I am so disturbed, because I cannot hear;

   (2)I am so disturbed as a layperson how the High Court has this information when I cannot get it with my support person which has been acknowledged by the High Court;

   (3)The law says we are supposed to be treated equally, but the law is [biased].  My question to the law — who is equal.

3. The appeal notice also refers to the New Zealand Bill of Rights Act 1990 and the Privacy Act 1993.

Background

1. Ms Wiki pleaded guilty on 12 April 2018 to one charge of wilful trespass and one charge of assaulting a police officer.  She had entered New World on Queen Street where she had previously been trespassed and, while being processed after her arrest, spat on an officer’s arm.  She was sentenced by Judge Thomas to twelve months’ supervision with special conditions, including that she undertake alcohol and drug counselling as directed by community probation.[5] 

   [5] DC judgment, above n 1, at [4].

2. In the High Court, Ms Wiki alleged abuse of power and process by the New Zealand Police, and malice on the part of the New World staff member who signed the initial trespass notice.[6]  She also asserted breaches of the Privacy Act and the Trespass Act 1980, and referred to s 53 of the Crimes Act 1961, which provides for the defence of moveable property with claim of right.[7] 

   [6] HC judgment, above n 2, at [8].

   [7]At [9].

3. Gordon J dismissed the conviction appeal because Ms Wiki had pleaded guilty and accepted the facts on which the charges and convictions are based.[8]  As to sentence, the Judge reviewed Judge Thomas’ sentencing notes.  Gordon J found “no fault” with the approach taken by Judge Thomas.[9]

   [8]At [10].

   [9]At [15].

4. Ms Wiki then sought a transcript of the High Court hearing for the purpose of seeking leave to appeal.  This was declined by Gordon J.[10]  The Judge did so on the basis that the prospects of the appeal succeeding were low.[11]  The Judge also noted that although Ms Wiki had made it clear that she was hard of hearing, there had been no oral submissions to which Ms Wiki was required to respond.[12] 

Leave to appeal

[10]Wiki v Police [2018] NZHC 2378.

[11]At [17].

[12]At [18].

1. Ms Wiki must satisfy this Court that her second appeal gives rise to a matter of general or public importance, or a miscarriage may have occurred or will occur if the appeal is not heard.[13]

   [13]Criminal Procedure Act, ss 237(2) and 253(3).

2. We do not consider Ms Wiki’s appeal meets these threshold requirements.  Her appeal notice alludes to her difficulties of hearing, privacy breaches and access to justice issues, which might be said to raise matters of general and public importance.  But, the appeal is so lacking in detail that the significance of these issues is unclear.  Moreover, her conviction appeal has no prospect of success given her guilty plea.  We are also satisfied that Ms Wiki has been given ample opportunity to be heard on sentence.  The sentence imposed by the District Court and approved by the High Court was plainly available to the sentencing Judge.  Finally, the refusal by Gordon J to produce a transcript of the High Court hearing was not unlawful or unreasonable for the reasons stated by the Judge.

Result 

1. The application for leave to appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent