Chatha v R [2005] NZCA 275 (17 November 2005)

Court of Appeal of New Zealand

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Chatha v R [2005] NZCA 275 (17 November 2005)

Last Updated: 14 December 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA332/05

THE QUEEN



v



ARSHAD MAHMOOD CHATHA

Hearing: 14 November 2005

Court: Hammond, William Young and Panckhurst JJ

Counsel: Appellant in Person
A M Powell for Crown

Judgment: 17 November 2005

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

(Given by William Young J)

Introduction

[1]	This is an application for special leave to appeal under s 144 of the Summary Proceedings Act 1957.
[2]	The appellant was convicted in February this year on six charges of theft and subsequently sentenced to 200 hours community work. His appeal against conviction and sentence was dismissed by Wild J in the High Court on 1 July this year. The appellant subsequently applied to Wild J for leave to appeal to this Court and this application was dismissed in a judgment delivered on 17 August 2005.
[3]	He now seeks leave to appeal from this Court.

Factual background

[4]	The case might be thought to be relatively straightforward.
[5]	When the police executed a search warrant on the appellant’s home, they located a number of items of property that plainly did not belong to the appellant. These consisted of wallets, drivers’ licences and bankcards. When initially spoken to by the police officer as to how he came to have possession of this property, he claimed that it had all been left in his taxi. The appellant’s later explanations both to the same police officer and in evidence in the District Court differed somewhat from his initial account.
[6]	The District Court Judge who heard the charges rejected the appellant’s evidence. He concluded that the appellant’s retention of the items (and the Judge made no finding as to how they initially came to be in the possession of the appellant) amounted to theft.
[7]	The appellant was represented by counsel at the summary trial of the charges against him but had dispensed with counsel’s services by the time he appeared for sentencing and when he appeared in the High Court.

Evaluation of the proposed appeal

[8]	Mr Chatha wishes to raise, if granted leave to appeal, wide ranging arguments about the processes followed and the conclusions reached in the District Court and the High Court, in particular that:

(a) Wild J ought not to have heard the appeal;
(b) The District Court proceedings should have been adjourned or dismissed because the informant did not appear in person (but rather by another police officer as permitted pursuant to s 40 of the Police Act 1958);
(c) The officer in charge of the case was permitted to remain in the Court throughout the proceedings (including when another police officer gave evidence);
(d) The informations were laid out of time;
(e) The search warrants were illegal and the search which led to the finding of the items of property in question was unreasonable;
(f) His rights of a fair trial were compromised because of difficulties in terms of arranging witnesses and the performance of his counsel;
(g) The factual conclusions of the District Court Judge, particularly as to the elements of theft were wrong; and
(h) Instead of being sentenced to community work he should have received a term of imprisonment.

[9]	None of these complaints justifies the grant of leave to appeal. Indeed the only point that warrants discussion in this judgment is whether the appellant could credibly argue in this Court that the informations in question were laid out of time.
[10]	In each of the informations the value ascribed to the items of property alleged to have been stolen was less than $100. Accordingly, the maximum sentence of imprisonment in relation to each charge under s 227 of the Crimes Act was three months.
[11]	Section 14 of the Summary Proceedings Act provides:

14 Time for laying information
Except where some other period of limitation is provided by the Act creating the offence or by any other Act, every information for an offence (other than an offence which may be dealt with summarily under section 6 of this Act) shall be laid within 6 months from the time when the matter of the information arose.
(Emphasis added)

[12]

Mr Chatha wishes to argue that s 14 applies to the charges of theft that were laid against him and it was common ground between him and Mr Powell, who appeared for the Crown in this Court, that if this is so, all informations laid against Mr Chatha were well out of time. Mr Powell’s position, however, is that s 14 does not apply as the charges of theft which the appellant faced were caught by the words of s 14 which we have italicised.

[13]

Section 6(1) of the Summary Proceedings Act provides:

6 Summary jurisdiction in respect of indictable offences
(1) A Court presided over by a District Court Judge shall have summary jurisdiction in respect of the indictable offences described in the enactments specified in the Schedule 1 to this Act, and proceedings in respect of any such offence may accordingly be taken in a summary way in accordance with this Act.

The indictable offences described in the enactments specified in Schedule 1 of the Summary Proceedings Act include theft.

[14]

On the face of it Mr Powell’s argument is right. Theft, even in circumstances attracting only a sentence of three months imprisonment, is nonetheless an indictable offence which is able to be dealt with summarily under s 6 of the Summary Proceedings Act and accordingly is not subject to the six month limitation provided for in s 14.

[15]

There is authority to the contrary - the judgment of Jeffries J in Brown v Urquhart HC DUN M49/78 29 May 1978. We are, however, satisfied that this decision was wrong. The combined effect of ss 2(2) and 329 of the Crimes Act 1961 is that a person charged with theft of items of property under $100 (and thus subject only to a term of imprisonment of three months) may be tried on indictment; a point which was not recognised in Brown v Urquhart. Given this, the conclusion that the time limit of six months does not apply is inescapable. We note that a broadly similar approach was taken by Gallen J in Young v Police (1994) 11 CRNZ 304.

Result

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

Solicitors:
Crown Law Office, Wellington