Ovtcharenko v Police [2017] NZCA 43 (6 March 2017)

Last Updated: 13 March 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA595/2016 [2017] NZCA 43
BETWEEN	DANEEL OVTCHARENKO Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Kós P and Brown J
Counsel:	C Mitchell for Applicant J Cheng for Respondent
Judgment: (On the papers)	6 March 2017 at 10.30 am

JUDGMENT OF THE COURT

1. The application to reverse the mode of hearing direction of Winkelmann J is declined.
2. Mr Ovtcharenko’s application for leave to bring a second appeal will be determined on the papers.

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REASONS OF THE COURT

(Given by Brown J)

[1] Mr Ovtcharenko’s request for a discharge without conviction on his entry of pleas of guilty in the District Court at North Shore to one charge of driving with excess breath alcohol and one of driving with an unnecessary exhibition of speed was declined by Judge Hinton.^[1] His appeal was declined by Heath J in the High Court.^[2] He now seeks leave to bring a second appeal.
[2] On 2 February 2017 Winkelmann J made case management directions^[3] and a mode of hearing direction that the application be determined on the papers. It does not appear that reasons for the latter direction were provided in accordance with s 327(3) of the Criminal Procedure Act 2011 (the CPA).
[3] On 17 February 2017 Mr Ovtcharenko filed an application for a direction that the leave application be the subject of an oral hearing before three Judges of this Court. He contends that applications for discharge without conviction are not being determined in the District Court in a consistent manner and, in particular, are not being determined in accordance with the guidance provided in Iosefo v Police^[4] and Alshamsi v Police^[5] and adopted by this Court in DC (CA47/2013) v R.^[6]
[4] Mr Ovtcharenko’s application for an oral hearing is opposed by the respondent who submits that the approach followed by Heath J followed the established approach to determine the consequences of a conviction. The respondent submits that it is unclear why Mr Ovtcharenko considers that further guidance is required from this Court on the correct approach to determining the consequences of a conviction given that Mr Ovtcharenko appears to accept that there is an established approach (albeit one which he submits was not followed in his case) and fails to cite any cases where lower courts have followed an approach different from the established approach.
[5] Although a single Judge of the Court of Appeal may make a mode of hearing direction, no Judge acting alone may reverse that decision.^[7]
[6] The CPA does not specify the composition of the Court which considers an application to reverse a decision of a single Judge made pursuant to s 327(2). However, s 333(1) of the CPA provides that any two or more Judges of the Court of Appeal may act as the court to determine any application for leave to appeal. As two Judges may hear and determine Mr Ovtcharenko’s application for leave to bring a second appeal, it follows in our view that the reconsideration which he seeks of the decision of Winkelmann J as to the mode of hearing for that application may likewise be heard by two Court of Appeal Judges.
[7] We are satisfied that it is appropriate and fair for Mr Ovtcharenko’s application for leave to appeal to be determined just on the basis of written material. Our reasons for that conclusion are:

• (a) both sides are represented by experienced counsel;
• (b) adequate written submissions have been filed;
• (c) as the submissions for Mr Ovtcharenko state, the crux of his contention is that the lower courts’ consideration concerning the consequence of conviction was wrong; that issue involves consideration of prior authorities cited in the written submissions and in respect of which the Court will not be further assisted by additional oral argument.

[8] Accordingly the application to reverse the mode of hearing direction of Winkelmann J is declined. Mr Ovtcharenko’s application for leave to bring a second appeal will be determined on the papers.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v Ovtcharenko [2016] NZDC 16460.

^[2] Ovtcharenko v Police [2016] NZHC 2572.

^[3] Pursuant to r 5D of the Court of Appeal (Criminal) Rules 2001.

^[4] Iosefo v Police HC Christchurch CIV-2005-409-64, 21 April 2005.

^[5] Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.

^[6] DC (CA47/2013) v R [2013] NZCA 255 at [43].

^[7] Criminal Procedure Act 2011, s 327(2).