Phillips v Police [2020] NZCA 425 (17 September 2020)

Last Updated: 23 September 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA541/2019 [2020] NZCA 425

	BETWEEN	KATHERINE ANNE STARR PHILLIPS Applicant
	AND	NEW ZEALAND POLICE Respondent

Hearing:	1 September 2020
Court:	Kόs P, Wylie and Muir JJ
Counsel:	Applicant in person C A Brook for Respondent
Judgment:	17 September 2020 at 9 am

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Muir J)

Introduction

• [1] Ms Phillips seeks special leave to appeal a conviction entered in the District Court at Blenheim in April 2000^[1] and in respect of which a subsequent appeal to the High Court was unsuccessful.^[2] For the reasons that follow we are satisfied that her application should be declined.

Background

• [2] Ms Phillips’ conviction was for criminal harassment. The District Court Judge found that she had harassed the wife of a male companion in a manner and for a duration which satisfied the criteria in s 8 of the Harassment Act 1997. She was ordered to come up for sentence if called upon within a year and to pay modest witnesses’ expenses. She appealed that judgment to the High Court. Wild J dismissed her appeal on 20 July 2000.
• [3] In 2019, having previously made an unsuccessful direct application to the Court of Appeal,^[3] she sought leave from the High Court to appeal the conviction. In her judgment dated 16 September 2019, Cull J declined the application.^[4] She held that the proposed appeal did not engage any issue of law of general or public importance and noted that Ms Phillips had failed to provide any explanation for the near 20-year period between her conviction and application. She considered that there was nothing in the application which justified a departure from the principles of finality.

The current application

• [4] The application for special leave is premised on alleged error of law in the District Court decision. Ms Phillips says that she was charged under the name Katherine Ann Phillips with a birth date of 28 August 1949, when her correct name is Katherine Anne Starr Phillips and her date of birth 28 June 1949. She says that the information filed against her was “false” and an abuse of process, that the law is a “precise discipline” and that her conviction is a nullity “in the same way as a bigamous marriage”.

Discussion

• [5] Because of the historic nature of the offending, Ms Phillips’ rights are governed by s 144 of the Summary Proceedings Act 1957. This provides:

144 Appeal to Court of Appeal—

(1) Either party may, with the leave of the [High Court], appeal to the Court of Appeal against any determination of the [High Court] on any case stated for the opinion of the [High Court] under section 107 of this Act or against any determination of the [High Court] on a question of law arising in any general appeal:

Provided that, if the [High Court] refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the [High Court], or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the [High Court] may grant leave accordingly if in the opinion of that Court 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.

(3) Where the [High Court] refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the [High Court], or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court 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.

...

• [6] In order to be granted special leave to appeal to this Court, Ms Phillips must therefore identify a question of law which by reason of its general or public importance, or for any other reason, is appropriate for submission.
• [7] In her decision declining leave, Cull J correctly set out the principles applicable to an application for leave to bring an appeal out of time.^[5] She cited Richardson P’s observations in R v Knight, discussing the equivalent provision under s 388 of the Crimes Act 1961 where he said :^[6]

... the starting point must be the principle that a conviction obtained according to law as it was then understood and applied should stand. Leave to appeal out of time on the ground that there has been a restatement of the applicable law should be granted only where special circumstances can be shown to justify a departure from the principle of finality. The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for the delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.

• [8] She also appropriately cited Butcher v R where this Court confirmed that it will entertain an appeal many years out of time only in exceptional circumstances:^[7]

Applications for leave to appeal out of time involve a balancing test, in which relevant considerations include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, and the practical utility of any remedies sought. The extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown are also relevant. A long delay can be a major factor weighing against leave, and, where unexplained, can be decisive.

(Footnotes omitted.)

• [9] In the present case the decisive factors against the grant of special leave are Ms Phillips’ failure to identify any question of law of general or public importance and her failure to adequately explain the delay in her application.
• [10] Neither the failure of the information to include her alleged third given name “Starr” or the apparent error in respect of her birth date satisfy the criteria identified in s 144(3) of the Summary Proceedings Act. At the time the position was governed by s 204 of that Act, which provides:

204 Proceedings not to be questioned for want of form

No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any [District Court] or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

• [11] In a recent decision under the present day equivalent, s 379 of the Criminal Procedure Act 2011 (the CPA), this Court has observed:^[8]

In New Zealand, such considerations have tended to be dealt with under s 379 of the CPA (or its predecessors), where miscarriage must be established in order to invalidate a defective charge. This means that New Zealand courts have tended to be less strict on the prior question of nullity. A charging document will be a nullity if it fails to disclose an offence, or a defendant, or is so unintelligible that the nature of the offence cannot be ascertained. Such will also be the case where the charge lacks a required statutory consent, or is out of time. To void a charging document therefore, relevant defects must be so radical as to deprive the document of its essential character. Technical or mechanical defects will not suffice, and the courts will be slow to reach such a “drastic conclusion”. It follows that even serious defects will be protected by s 379 of the CPA if, despite the impugned defect, the document nonetheless discloses a recognisable charge, a recognisable defendant, (where necessary) is in time and is supported by statutory consents. But if one or more of these elements is missing, “there is nothing before the Court capable of rectification”.

(Footnotes omitted, emphasis added.)

• [12] Despite the alleged omission and error, the information laid against Ms Phillips disclosed a recognisable charge and recognisable defendant. Ms Phillips gave evidence in the proceeding. At no time did she claim she was not the person charged. Her only other grounds relate to unsubstantiated allegations against judicial officers. In assessing whether a question of general or public importance is engaged on an intended appeal, this Court may legitimately consider the strength of the underlying argument.^[9] In this case the argument is untenable.
• [13] Nor does Ms Phillips adequately explain the reasons for the almost 20-year delay in seeking leave to appeal her conviction. Indeed, as she did before Cull J, Ms Phillips advanced a “fundamental democratic right to appeal” for which she was not obliged to give reasons,^[10] seemingly ignoring the gateway requirements of s 144(3). Pressed, she said that she had spent the intervening period unable to elicit the interest of any legal practitioner to take her case. There is, however, no evidence before this Court explaining why it took nearly 20 years to exhaust these avenues.

Result

• [14] We dismiss the application for special leave to appeal to this Court.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] New Zealand Police v Phillips DC Blenheim CRI-1999-006-762451, 17 April 2000.

^[2] Phillips v New Zealand Police HC Blenheim AP3/00, 20 July 2000.

^[3] Phillips v New Zealand Police [2019] NZCA 277.

^[4] Phillips v New Zealand Police [2019] NZHC 2330.

^[5] At [5]–[6].

^[6] R v Knight [1998] 1 NZLR 583, (1997) 15 CRNZ 332 (CA) at 588–589.

^[7] Butcher v R [2015] NZCA 102 at [7].

^[8] Talley’s Group Ltd v WorkSafe New Zealand [2018] NZCA 587, [2019] 2 NZLR 198 at [45].

^[9] Jones v Wellington City Council [2017] NZCA 261 at [19].

^[10] Phillips v New Zealand Police, above n 4, at [11].