Ross v R [2013] NZCA 25 (22 February 2013)

Last Updated: 27 February 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA75/2012 [2013] NZCA 25

BETWEEN KENNETH JAMES ROSS Applicant

AND THE QUEEN First Respondent

AND THE COMMERCE COMMISSION Second Respondent

Court: O'Regan P, Randerson and Harrison JJ

Counsel: H D M Lawry for Applicant Z R Hamill for First Respondent N Flanagan for Second Respondent

Judgment: 22 February 2013 at 11:00am

(On the papers)

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The applicant, Mr Ross, seeks special leave to appeal to this Court pursuant to s 144 of the Summary Proceedings Act 1957 against certain convictions sustained after trial in the District Court before Judge Spear. The respondents oppose the application.
[2] Mr Ross was charged with offending under the Crimes Act 1961 and the Fair Trading Act 1986 in relation to alleged deceptive representations made to the management of the Hamilton International Airport and others in relation to a proposal to stage an airshow at the airport in 2008. Mr Ross was convicted on 25 November 2009 of five breaches of s 242(1)(b) of the Crimes Act and five breaches of s 40(1) of the Fair Trading Act. He was sentenced on 30 March 2010 to nine months’ home detention and 200 hours’ community service.[1]
[3] Mr Ross appealed both conviction and sentence but is now concerned only with his conviction on the charges under the Crimes Act. If successful, he would seek a reduction in his sentence.

The appeal to the High Court

[4] In the High Court, Mr Ross complained that, because he was continuing to serve his sentence of home detention despite having filed an appeal to the High Court, he was deprived of obtaining access to documents held in a lock-up garage. Although he gained access to these documents prior to the hearing of his appeal on 8 October 2010, Mr Ross sought a further adjournment of the appeal on that day.
[5] In a carefully reasoned judgment, Cooper J dismissed the appeal for want of prosecution.[2] He did not accept there was any proper basis to grant an adjournment. He formed the view that Mr Ross was making up excuses in an attempt to secure an adjournment and thereby delay the hearing of the appeal.

Leave to appeal refused in the High Court

[6] Mr Ross then sought special leave from the High Court to appeal against Cooper J’s decision. Lang J dismissed that application in a judgment delivered orally on 10 February 2012.[3] Lang J was not satisfied there was any question of law to be determined on appeal. The question of law formulated by counsel for Mr Ross was whether his right to appeal had been prejudiced as a consequence of the fact that he was required to serve a sentence of home detention up to 6 October 2010. The Judge, correctly in our view, did not consider that raised a question of law. Even if it did, it did not amount to a question of general or public importance such that it ought to be determined by this Court.

Grounds advanced to this Court

[7] In advancing the application for special leave to appeal, Mr Lawry initially relied on issues relating to the inability of Mr Ross to access documents in the lock-up garage. We are satisfied that this issue does not raise any question of law, let alone one which ought to be determined by this Court by reason of its general or public importance or for some other reason.[4] Mr Lawry accepted that, at least some of the documents Mr Ross sought to rely upon were not before the District Court and could not meet the “fresh evidence” test. And, in any event, Mr Ross had access to them before his appeal was heard.
[8] However, Mr Lawry also sought to raise a number of further points in his submissions of 18 December 2012. None of these further points had been relied upon in the High Court. We accept Mr Hamill’s submission on behalf of the first respondent that these additional issues fall outside the ambit of s 144 of the Summary Proceedings Act. As this Court noted in Candy v Auckland City Council,[5] the Summary Proceedings Act requires a second appeal to be on a question of law arising in the general appeal to the High Court. It would be contrary to the policy of general finality of a first appeal to allow leave to bring a second appeal on a question of law not raised during that first appeal.[6]
[9] In any event, we do not see any merit in any of the points which Mr Ross would seek to raise if special leave to appeal to this Court were granted. He complained that some of the counts in the Crimes Act were bad for duplicity, contrary to s 16 of the Summary Proceedings Act. We are satisfied this submission could not succeed. There is no reason why deceit in a written document presented to the airport management could not rely on more than one particular of deceit arising from false statements in the relevant document. This does not allege more than one offence contrary to s 16 of the Summary Proceedings Act.
[10] Then there is an alleged absence of particulars. It appears from the judgment of Judge Spear that particulars were separately provided. There is nothing in that point.
[11] Next, an issue was raised about the meaning of the word “secured” in the context of whether certain television rights had been secured as represented. This is essentially a question of fact which the Judge found against Mr Ross. Similarly in relation to whether certain levels of ticket sales had been “secured”.

Result

[12] For the reasons given, the application for special leave to appeal to this Court is dismissed.

Solicitors:
Crown Law office, Wellington for First Respondent

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[1] Police v Ross DC Hamilton CRI-2010-019-701, 30 March 2010.

[2] Ross v Police HC Hamilton CRI-2010-419-43, 8 October 2010.

[3] Ross v Police [2012] NZHC 115.

[4] R v Slater [1997] 1 NZLR 211 (CA).

[5] Candy v Auckland City Council CA371/2002, 25 February 2003.

[6] At [14].