Wiki v Police

[2018] NZHC 2378

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-146

[2018] NZHC 2378

BETWEEN

VICTORIA MARIGOLD MARGARET WIKI
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	On the papers
Judgment:	10 September 2018

JUDGMENT OF GORDON J

This judgment was delivered by me

on 10 September 2018 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Auckland Copy To: The appellant

WIKI v POLICE [2018] NZHC 2378 [10 September 2018]

Introduction

[1]                   On 21 August 2018, I gave a decision dismissing Ms Wiki’s appeal against conviction and sentence.1 Ms Wiki had pleaded guilty in the District Court to one charge of wilful trespass and one charge of assault on a female constable. In short, Ms Wiki had entered New World on Queen Street where she had previously been trespassed, and while being processed after her arrest, she spat on an officer’s arm.

[2]                   Ms Wiki has filed in this Court what purports to be a copy of a notice of appeal to the Court of Appeal dated 28 August 2018 (as opposed to an application for leave to bring a second appeal).2

The application

[3]                   Ms Wiki has also filed an application in this Court for access to court documents dated 28 August 2018. She seeks a transcript of the hearing of her appeal on 21 August 2018. She says a transcript of submissions is requested.

[4]                   Ms Wiki says that the reason she wants the transcript is because she cannot hear and is deaf. She says the transcript will be needed for the Court of Appeal where she intends to lodge an appeal. Ms Wiki says, overall, she seeks a re-hearing in the District Court.

Relevant legal principles

[5]                   Requests for access to court documents fall under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules).

[6]                   As Ms Wiki was a party to this appeal, she has a general right to search, inspect and copy any part of the court file or any document relating to the proceeding.3

1      Wiki v New Zealand Police [2018] NZHC 2156.

2      See Criminal Procedure Act 2011, ss 239(1) and 255(1).

3      Senior Courts (Access to Court Documents) Rules 2017, r 9(4).

[7]                   However, the transcript of Ms Wiki’s appeal does not fall within the definition of a document, in the context of an appeal, or within the definition of the court file.4 That is because there is at present no written transcript of the appeal hearing in this Court. The only resource available is the electronic recording of the hearing.

[8]                   Therefore, Ms Wiki does not have a right to access the transcript. Rule 3(3) provides that the Rules do not require a Registrar or any other person to prepare a document that is not in existence at the time a person asks to access it.

[9]                   The Court of Appeal stated in Mackenzie v Attorney-General, “[b]ecause there is time and expense involved in the preparation of a transcript of a hearing, transcripts are not prepared as a matter of course”.5

[10]               The Supreme Court’s comments in Siemer v Heron provide guidance as to whether Ms Wiki should be granted access to the transcript:6

[9] … There are obvious resource implications if judges direct court registries to provide parties with transcripts of hearings of appeals and interlocutory matters general on demand by litigants. For that reason, judges should always first satisfy themselves that there is good reason in the interests of justice for giving such directions …

[11]               I also note Dobson J’s comments in Misiuk v Superintendent of a Penal Institution:7

[19] … The resources of the Ministry to undertake such transcription are limited … Obviously, any widespread practice of producing transcripts of electronic recordings in response to requests … would create substantial resourcing difficulties for the Ministry.

Analysis

[12]               Ultimately, I am satisfied that there is no good reason in the interests of justice for directing that a transcript of the appeal hearing be provided to Ms Wiki.

4      Rule 4.

5      Mackenzie v Attorney-General [2016] NZCA 24 at [22].

6      Siemer v Heron [2011] NZSC 116. See also Mackenzie v Attorney-General, above n 5, at [22];

Cook v Housing New Zealand Corp [2017] NZHC 3202 at [11].

7      Misiuk v Superintendent of a Penal Institution HC Auckland CIV-2010-404-6625, 8 October 2010.

[13]               I start with the grounds of Ms Wiki’s (apparent) notice of appeal to the Court of Appeal. In that document, Ms Wiki says:

I could not hear and provided documents to show this. The lawyer in the District Court didn’t give me the right information. I didn’t want a guilty plea.

I could not hear or understand, so how can you sentence me?

[14]               However, those grounds need  to  be  considered  against  the  contents  of  Ms Wiki’s handwritten and signed letter dated 12 April 2018 to the District Court which do not suggest that Ms Wiki’s guilty plea was not a considered one. She says:

Dear Your Honour,

I am sorry I am back before the Court, and for disrespecting the police.

I am trying hard to stay away from bad people, and to stay out of trouble. I was panicked and confused when I was arrested and I am very ashamed of my actions.

I am hoping to get back involved with counselling for my issues with drugs and alcohol, and I hope you take this into account when sentencing me.

[15]               The next reason is that Ms Wiki’s appeal to the Court of Appeal will be a second appeal. Section 237 of the Criminal Procedure Act 2011 (the Act) governs applications for leave to bring a second appeal against a conviction.8 It provides as follows:

237     Right of appeal against determination of first appeal court

(1)A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2)The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)the appeal involves a matter of general or public importance; or

(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

8      See s 253 of the Criminal Procedure Act for applications for leave to bring a second appeal against sentence.

[16]               The standard under s 237(2)(a) is a high one. The threshold is unlikely to be met unless the proposed appeal gives rise to an issue of general principle or of general importance in the administration of the criminal law by the Courts, such as one having a broad application beyond the circumstances of a particular case.9 The threshold for a miscarriage of justice under s 237(2)(b) is similarly high, with not every error amounting to a miscarriage.10

[17]               I regard Ms Wiki’s prospects of success on appeal as extremely low. As I noted in my judgment, Ms Wiki pleaded guilty to the charges, and she accepted the facts on which the charges and convictions were based.11 As to her sentence appeal, the sentence of 12 months’ supervision was not out of range given Ms Wiki’s culpability.12

[18]               I accept that in the appeal hearing in the High Court, Ms Wiki made it clear to me that she was hard of hearing. However, there were no oral submissions from the respondent to which Ms Wiki was required to respond. The respondent had filed a written memorandum and I did not call on counsel for the respondent to address the Court orally.

[19]               In all these circumstances, I am satisfied that there is no good reason in the interests of justice for granting Ms Wiki access to the transcript.

Result

[20]Ms Wiki’s application for access to the transcript is refused.

Gordon J

9      McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].

10     McAllister v R, above n 9, at [38].

11     Wiki v New Zealand Police, above n 1, at [10].

12 At [17].