TERRY v R [2005] NZCA 21 (1 March 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA381/04
CA422/04

THE QUEEN



v



ROBERT FRANK TERRY

Hearing: 14 February 2005

Court: McGrath, William Young and O’Regan JJ

Counsel: Applicant in person
M F Laracy for Crown

Judgment: 1 March 2005

JUDGMENT OF THE COURT

The application for special leave to appeal in respect of CA381/04 is dismissed. The application for extension of time to apply for special leave to appeal in respect of CA422/04 is declined.

REASONS

(Given by O’Regan J)

Introduction

[1]	The applicant, Mr Terry, has made two applications to this Court relating to decisions of the High Court dismissing appeals from decisions of the District Court. The two applications were heard together and this judgment deals with both of them.
[2]	The first application (CA381/04) seeks special leave to appeal against a decision of Chisholm J (HC GRY CRI 2004-418-3 8 June 2004) dismissing the applicant’s appeal against his conviction for using threatening language in a public place contrary to s 4 of the Summary of Offences Act 1981 and the sentence imposed in the District Court in relation to that offence (a fine of $400, Court costs of $130 and witness expenses of $50). The applicant had been convicted of that offence after a hearing in the District Court at Westport on 12 March 2004. The applicant was not present at the District Court hearing. He had applied for an adjournment but this had not been allowed.
[3]	The applicant sought leave in the High Court to appeal to this Court but this was declined by Chisholm J in a judgment dated 21 September 2004. Accordingly, he now seeks special leave under s 144(3) of the Summary of Proceeding Act 1957 from this Court. His application was made within the time limit specified in s 144(3).
[4]	The second application (CA422/04) relates to a decision of Panckhurst J (HC GRY AP5/02 21 August 2002). In that decision, Panckhurst J dismissed the applicant’s appeal against a conviction for dangerous driving and the sentence of a $500 fine, Court costs of $130 and disqualification from driving for six months. The applicant had been convicted in the District Court at Westport on 5 July 2002 following a defended hearing.
[5]	The applicant sought leave from the High Court to appeal against the judgment of Panckhurst J, but this was declined in a judgment dated 9 October 2002. No application to this Court for special leave to appeal was filed until 1 November 2004, about two years outside the time limit for the making of such an application under s 144(3) of the Summary of Proceedings Act. Accordingly, the applicant seeks an extension of time to apply for special leave to appeal and, if that is granted, also seeks special leave to appeal.
[6]	This Court may grant special leave to appeal under s 144(3) if, in its opinion, 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. This reflects the intention of Parliament that, generally, there should be a single right of appeal in relation to decisions made in the summary jurisdiction of the District Court, and that such appeal should be to the High Court. It will only be in cases falling within the limited scope of s 144(3) that a second appeal to this Court will be permitted.

Submissions of applicant

[7]

In relation to CA381/04, the applicant said that he did not dispute the conviction but argued that questions of law arose in relation to the District Court Judge’s decision to decline an adjournment, and the lack of a law library or Community Law Centre on the West Coast. He said that both these issues raised a point of law as to the interpretation of s 24(d) of the New Zealand Bill of Rights Act 1990 and that the Court should hear his appeal in CA381/04 in relation to that issue.

[8]

In relation to CA422/04, the applicant again raised the issue of the lack of a law library or Community Law Centre on the West Coast. In addition, he said there were inconsistencies in the complainant’s evidence. He also argued that a map of the scene of the offending which was produced in the District Court by the police was incorrect because according to the map it was oriented to the north but in fact it was oriented to the south. Essentially, therefore, the map was upside down, according to the applicant. His reason for the delay in making his application for special leave was that a prosecution expert has, he says, recently acknowledged that the map was wrong.

Submissions of the Crown

[9]

In relation to CA381/04, Crown counsel argued that the District Court Judge’s decision to decline an adjournment did not give rise to any legal issue. She pointed out that the applicant had three months from the time of the previous adjournment, which had been granted at his request, to prepare his defence, that his application for adjournment did not contain a reasonable explanation for his non-attendance on the day (he referred to a commitment to a hearing in this Court, but that hearing was several days after the District Court hearing), and that the Judge’s exercise of his discretion not to grant the adjournment was clearly within his power.

[10]

In relation to CA422/04, Crown counsel pointed out that the application was two years out of time and said that it was clear from the judgment of the High Court both in the substantive appeal and in the decision declining leave to appeal to this Court that the issue relating to the map was of peripheral importance only, and did not raise a question of law. She said no other arguable point of law arose.

Discussion

[11]

We are satisfied that there is no basis for the granting of leave in relation to CA381/04. The Judge’s exercise of his discretion not to grant an adjournment does not give rise any question of law, let alone one of general public importance, and the availability or otherwise of a law library or Community Law Centre on the West Coast is a matter for executive or legislative decision, not for this Court.

[12]

Equally, we are satisfied that there is no basis to extend the time for the applicant to apply for leave to appeal in relation to CA422/04. Again, the issue raised in relation to the map is, as Panckhurst J noted in the High Court, a matter of no significance in the context of the case, and no other question of law, let alone a question of law of general or public importance, arises.

Result

[13]	Accordingly, we decline the application for special leave to appeal in relation to CA381/04, and decline the application for extension of time for the filing of an application for leave to appeal in relation to CA422/04.

Solicitors:
Crown Law Office, Wellington