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The Queen v Kerr [2006] NZCA 165 (11 July 2006)

Last Updated: 26 July 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA486/05

THE QUEEN

v

VONRICK CHRISFORD KERR

Hearing: 19 June 2006

Court: Robertson, Arnold and Ellen France JJ

Counsel: Applicant in person
A M Powell for Crown

Judgment: 11 July 2006

JUDGMENT OF THE COURT

Leave to appeal is refused.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] This is an application under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal to this Court against a decision of Goddard J delivered on 5 October 2005. The applicant sought leave from the High Court, but that was refused by Ronald Young J on 6 December 2005.
[2] The questions in respect of which the applicant seeks leave are:

1. Whether a convicted person has equal rights under the law and can rely on the law for protection?
2. Whether a convicted person has rights in bringing a complaint in the Courts subject to s 74 of the Summary Proceedings Act 1957?
3. Whether it is lawful for a Police Officer to benefit (from a District Court Judge’s statutory discretion) on criminal misconduct without my complaint, at the very least being heard?

Factual background

[3] On 28 May 1997 the applicant was convicted in the District Court on two charges of being in an enclosed yard without reasonable excuse. He was ordered to come up for sentence if called upon within 12 months and to pay court costs of $75 and witness expenses of $150.
[4] The applicant appealed against those convictions to the High Court. On 3 September 1997 Doogue J dismissed the appeal. An application for leave to appeal to this Court was declined by this Court on 26 March 1998 following an oral hearing. The applicant was at that point represented by counsel.
[5] The applicant then sought a rehearing of his case in the District Court. His request was referred to the presiding Judge, Judge Dalmer, and was declined. The applicant was advised of this by a letter dated 10 December 1998 from the Deputy Registrar which said:

Your letter and attachments were referred to His Honour Judge Dalmer.
Unfortunately the Judge has no jurisdiction to re-open this case as requested by you.
Our only advice to you is to seek legal assistance from your lawyer.

[6] The next step was that, on 1 October 2003, the applicant filed a complaint under s 74 of the Summary Proceedings Act 1957. He said his conviction was an injustice that was still causing him significant hardship, namely, the loss of his taxi licence consequent upon his conviction.
[7] The applicant applied again in October 2003 to Judge Dalmer for a rehearing under s 75 of the Summary Proceedings Act.
[8] In this application, the applicant made allegations of perjury against the arresting officer. This perjury was said to have resulted in contamination of the Police witnesses and their evidence. The applicant offered as evidence of this alleged perjury the relevant Police charge sheet which had a general description of him at the time of his arrest and photographs taken of him at the time he was dealt with at the Police Station. In evidence, the arresting officer had described the applicant as "being found sweaty and muddy in the place where he was clearly found" by a tracker dog. Judge Dalmer had found this evidence as having been "hardly consistent with a walk around Kelburn Parade". The applicant says this description was false and was not reflected in the description by the officer on the charge sheet or by his appearance in the photographs.
[9] Judge Dalmer refused to grant a rehearing. The Judge pointed out that the matters now raised in the s 75 complaint either were or could have been raised in his appeal against conviction. The Judge said:

There has to be an end to litigation. There has already been an appeal where these matters and others were or could have been raised. No grounds for rehearing established. Application refused.

[10] A further application under ss 74 and 75 of the Summary Proceedings Act and under s 27 of the New Zealand Bill of Rights Act 1990 was made by the applicant on 20 June 2004. As Judge Dalmer had by this point retired, the application was considered by Judge Grace.
[11] The grounds for this application again related to the perjury allegation; an alleged failure by Judge Dalmer to investigate the earlier complaint; Judge Dalmer’s mistaken belief in 1998 that he had no jurisdiction to deal with the first application for a rehearing; and the use of "unjustified convictions ... by the New Zealand Police to prevent him from seeking employment". The applicant again proferred the Police photographs, the charge sheet and summary of facts.
[12] Judge Grace on 28 June 2005 issued a Minute in which he refused to grant a rehearing of the information. The Judge said four factors weighed against the grant of a rehearing:
(a) The time that had passed since the original decision;
(b) The dismissal of the earlier appeals;
(c) The earlier, unsuccessful application for a rehearing;
(d) That the application was based on the applicant’s belief that the Police Officer misled the Court and this was an issue of credibility that would have been determined at the original hearing and was not a ground for a rehearing.
[13] The applicant appealed to the High Court.

Decision in the High Court

[14] Goddard J concluded that the High Court did not have jurisdiction to consider an appeal from a District Court Judge’s refusal to order a rehearing of an information or complaint under s 75: Tuohy v Police [1959] NZLR 865. The Judge said this was because the appeal right under s 115 of the Summary Proceedings Act is predicated on the determination or deciding of an information, as is apparent from the wording of s 115(1):

... a District Court determines any information or complaint, and –

(a) Convicts any defendant; or

(b) Makes any order, ...

[15] Goddard J observed that numerous decisions since Tuohy v Police had confirmed that the refusal of a rehearing under s 75 after conviction was not a determination of an information. The appeal was accordingly dismissed.
[16] When the matter came before Ronald Young J as an application for special leave to appeal to the Court of Appeal on a question of law, the Judge said there was no important question of law which was required to be reconsidered as the matter was already settled law. The application for special leave was refused.

Discussion

[17] The Court may grant special leave if there is a question of law that ought to be submitted to this Court by reason of its general or public importance, or for some other reason. The relevant principles were summarised by this Court in R v Slater [1997] 1 NZLR 211 at 214-215.
[18] Mr Kerr’s case is that there is power under s 74 of the Summary Proceedings Act to lay a complaint of perjury against the Police Officer. That is what he has been unsuccessfully trying to pursue and his complaint has not been heard. He says it follows that Goddard J was wrong to say that s 74 does not enable a convicted person to make a complaint and to find there was no jurisdiction to appeal under s 115.
[19] The Crown’s submission is that the reference to a complaint in s 74 is an anomaly, a "remnant" from the Justices of the Peace Act 1927 which has no present utility. The Crown also says there was no jurisdiction for the High Court to hear the appeal under s 115 of the Summary Proceedings Act 1957 and so this Court also has no jurisdiction.
[20] Mr Kerr’s argument relies on ss 12, 13 and 74 of the Summary Proceedings Act. Those sections are in Part 2 of the Act which, in terms of s 11, applies to all proceedings where the defendant is proceeded against summarily. A "defendant" includes "any person against whom an order is sought in proceedings commenced by way of complaint" (s 2(1)).
[21] Section 12 of the Act provides:
12 Commencement of proceedings

(1) Except where the defendant has been arrested without warrant, all proceedings brought under this Part of this Act shall, subject to sections 20A and 21 of this Act, be commenced by the laying of an information or the making of a complaint.
(2) Where a defendant has been arrested on any charge and no information has been laid, particulars of the charge against him shall be set out in a charge sheet.
(3) The provisions of this Act shall apply with respect to every entry in a charge sheet as if that entry were an information.

[22] In terms of s 13, any person may lay an information. No provision expressly deals with who is entitled to make a "complaint" but s 74 provides:
74 Provisions of this Part to apply to complaints

Subject to the provisions of any other Act, the provisions of this Part of this Act, as far as they are applicable and with the necessary modifications, shall apply to proceedings brought by way of complaint as if they were proceedings brought on an information, and as if references in this Part to the informant were references to the complainant, as if references to a charge or to an offence were references to the ground of the complaint, and as if references to a conviction were references to an order.

[23] It is plain from the statutory scheme that these provisions do not mean informations and complaints are inter-changeable. Rather, the Act envisages the use of complaints in the limited situations for which there is specific provision. In terms of the Summary Proceedings Act, s 186 specifically provides for a person to apply, "by complaint" to a District Court Judge for an order requiring another person to enter into a bond for keeping the peace. There are also other statutes which make specific provision for matters to proceed by way of complaint. Examples of these are applications to compel local authorities to comply with obligations to remove weeds and obstructions (Land Drainage Act 1908, s 63(a)); and complaints following the failure to give an assurance or the breach of an assurance to comply with smoke-free legislation (Smoke-Free Environments Act 1990, s 16(6)).
[24] Section 74 does not confer jurisdiction to make a complaint but rather sets out the procedure to be used in those limited situations where provision is made for a complaint. This approach is apparent from this Court’s observation in Ministry of Fisheries v Dowey [1998] 3 NZLR 5 at 8 that:

Although the institution of criminal or quasi-criminal proceedings is normally by laying an information, it can also be by way of a complaint (s 12). Examples of the complaint procedure include s 186 of the Act (breach of the peace), and s 32 of the Transport Act 1962 (disqualification from driving on application of a local authority).

[25] There is, therefore, no power for the applicant to make a complaint alleging perjury by the Police Officer under this section. There has been no error in the approach taken by the District Court or the High Court to the applicant’s purported "complaint".
[26] We consider the proposed appeal to be without merit, and accordingly would refuse leave.
[27] While we have addressed the merits, it also follows that there was no jurisdiction to appeal to the High Court or to this Court. That is because s 115(1) of the Summary Proceedings Act provides for a right of appeal on the "determination" of any information or complaint. No complaint has properly been made let alone determined as required by s 115(1).

Result

[28] Leave to appeal is refused.

Solicitors:
Crown Law Office, Wellington

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[1]	This is an application under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal to this Court against a decision of Goddard J delivered on 5 October 2005. The applicant sought leave from the High Court, but that was refused by Ronald Young J on 6 December 2005.
[2]	The questions in respect of which the applicant seeks leave are:

[3]	On 28 May 1997 the applicant was convicted in the District Court on two charges of being in an enclosed yard without reasonable excuse. He was ordered to come up for sentence if called upon within 12 months and to pay court costs of $75 and witness expenses of $150.
[4]	The applicant appealed against those convictions to the High Court. On 3 September 1997 Doogue J dismissed the appeal. An application for leave to appeal to this Court was declined by this Court on 26 March 1998 following an oral hearing. The applicant was at that point represented by counsel.
[5]	The applicant then sought a rehearing of his case in the District Court. His request was referred to the presiding Judge, Judge Dalmer, and was declined. The applicant was advised of this by a letter dated 10 December 1998 from the Deputy Registrar which said:

[6]	The next step was that, on 1 October 2003, the applicant filed a complaint under s 74 of the Summary Proceedings Act 1957. He said his conviction was an injustice that was still causing him significant hardship, namely, the loss of his taxi licence consequent upon his conviction.
[7]	The applicant applied again in October 2003 to Judge Dalmer for a rehearing under s 75 of the Summary Proceedings Act.
[8]	In this application, the applicant made allegations of perjury against the arresting officer. This perjury was said to have resulted in contamination of the Police witnesses and their evidence. The applicant offered as evidence of this alleged perjury the relevant Police charge sheet which had a general description of him at the time of his arrest and photographs taken of him at the time he was dealt with at the Police Station. In evidence, the arresting officer had described the applicant as "being found sweaty and muddy in the place where he was clearly found" by a tracker dog. Judge Dalmer had found this evidence as having been "hardly consistent with a walk around Kelburn Parade". The applicant says this description was false and was not reflected in the description by the officer on the charge sheet or by his appearance in the photographs.
[9]	Judge Dalmer refused to grant a rehearing. The Judge pointed out that the matters now raised in the s 75 complaint either were or could have been raised in his appeal against conviction. The Judge said:

[10]	A further application under ss 74 and 75 of the Summary Proceedings Act and under s 27 of the New Zealand Bill of Rights Act 1990 was made by the applicant on 20 June 2004. As Judge Dalmer had by this point retired, the application was considered by Judge Grace.
[11]	The grounds for this application again related to the perjury allegation; an alleged failure by Judge Dalmer to investigate the earlier complaint; Judge Dalmer’s mistaken belief in 1998 that he had no jurisdiction to deal with the first application for a rehearing; and the use of "unjustified convictions ... by the New Zealand Police to prevent him from seeking employment". The applicant again proferred the Police photographs, the charge sheet and summary of facts.
[12]	Judge Grace on 28 June 2005 issued a Minute in which he refused to grant a rehearing of the information. The Judge said four factors weighed against the grant of a rehearing:
(a)	The time that had passed since the original decision;
(b)	The dismissal of the earlier appeals;
(c)	The earlier, unsuccessful application for a rehearing;
(d)	That the application was based on the applicant’s belief that the Police Officer misled the Court and this was an issue of credibility that would have been determined at the original hearing and was not a ground for a rehearing.
[13]	The applicant appealed to the High Court.

[15]	Goddard J observed that numerous decisions since Tuohy v Police had confirmed that the refusal of a rehearing under s 75 after conviction was not a determination of an information. The appeal was accordingly dismissed.
[16]	When the matter came before Ronald Young J as an application for special leave to appeal to the Court of Appeal on a question of law, the Judge said there was no important question of law which was required to be reconsidered as the matter was already settled law. The application for special leave was refused.

[17]	The Court may grant special leave if there is a question of law that ought to be submitted to this Court by reason of its general or public importance, or for some other reason. The relevant principles were summarised by this Court in R v Slater [1997] 1 NZLR 211 at 214-215.
[18]	Mr Kerr’s case is that there is power under s 74 of the Summary Proceedings Act to lay a complaint of perjury against the Police Officer. That is what he has been unsuccessfully trying to pursue and his complaint has not been heard. He says it follows that Goddard J was wrong to say that s 74 does not enable a convicted person to make a complaint and to find there was no jurisdiction to appeal under s 115.
[19]	The Crown’s submission is that the reference to a complaint in s 74 is an anomaly, a "remnant" from the Justices of the Peace Act 1927 which has no present utility. The Crown also says there was no jurisdiction for the High Court to hear the appeal under s 115 of the Summary Proceedings Act 1957 and so this Court also has no jurisdiction.
[20]	Mr Kerr’s argument relies on ss 12, 13 and 74 of the Summary Proceedings Act. Those sections are in Part 2 of the Act which, in terms of s 11, applies to all proceedings where the defendant is proceeded against summarily. A "defendant" includes "any person against whom an order is sought in proceedings commenced by way of complaint" (s 2(1)).
[21]	Section 12 of the Act provides:
12	Commencement of proceedings

[22]	In terms of s 13, any person may lay an information. No provision expressly deals with who is entitled to make a "complaint" but s 74 provides:
74	Provisions of this Part to apply to complaints

[25]	There is, therefore, no power for the applicant to make a complaint alleging perjury by the Police Officer under this section. There has been no error in the approach taken by the District Court or the High Court to the applicant’s purported "complaint".
[26]	We consider the proposed appeal to be without merit, and accordingly would refuse leave.
[27]	While we have addressed the merits, it also follows that there was no jurisdiction to appeal to the High Court or to this Court. That is because s 115(1) of the Summary Proceedings Act provides for a right of appeal on the "determination" of any information or complaint. No complaint has properly been made let alone determined as required by s 115(1).