Fehoke v Ministry of Health no.2 HC Auckland CRI 2011-404-0125 [2011] NZHC 1271 (5 October 2011)

Last Updated: 30 March 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2011-404-0125}

KAUFONONGA FEHOKE

Appellant

v

MINISTRY OF HEALTH

Respondent

Hearing: 3 October 2011

Counsel: V Letele for Appellant

H H Ifwersen for Respondent

Judgment: 5 October 2011

_{JUDGMENT (No 2) OF KEANE J}

This judgment was delivered by on 5 October 2011 at pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland: [e-mail]

Counsel:

V Letele, [e-mail]

KAUFONONGA FEHOKE V MINISTRY OF HEALTH HC AK CRI 2011-404-0125 5 October 2011

[1] In a decision I gave on 14 July 2011 I dismissed Ms Fehoke's appeal against her conviction and sentence of 70 hours community work, in the District Court, Manukau, on 13 April 2011, for her part in benefit fraud expressed in two consolidated charges of fraudulent use of a document.

[2] Ms Fehoke now seeks leave to appeal my decision on a point of law, out of time, under s 144 of the Summary Proceedings Act 1957; an application the Ministry opposes. And on 4 October 2011, in a telephone conference, I reviewed with counsel the affidavit evidence in support and the submissions exchanged.

[3] I then said that, while I had every sympathy for the predicament in which Ms Fehoke now finds herself, she suffers now from an inability to retain or find work, I did not consider that she was entitled to leave; and that if she wished to pursue an appeal she would have to seek special leave from the Court of Appeal itself. I now give my reasons.

Context

[4] The issue on the appeal before me was whether any conviction ought to have been entered, let alone community work imposed. Ms Fehoke contended that even the conviction entered was out of all proportion to the gravity of her offence. She had done no more, she contended, than to assist a friend who was then caring for two intellectually disabled dependent twins. She feared that a conviction would prevent her from holding or finding work.

[5] In upholding the conviction and sentence I said that Ms Fehoke might have been fortunate to have been sentenced to no more than 70 hours community work and that, quite independently, the Judge had no cogent evidence that her employment was at risk. At the time of her appeal, I held, she was less vulnerable still because she had a new job and was no longer in a position of trust. There was then nothing, I said, to suggest that her employer had any interest in the subject.

[6] In applying now for leave to appeal out of time, Ms Fehoke points to the fact that the employment agency that obtained her the temporary work she had at the time of her appeal, which ended on 14 August 2011, is no longer willing to place her. A letter from the agency dated 22 August 2011 confirms that her conviction stands in the way. Ms Fehoke has also, she says in her affidavit, been unable to obtain work herself, though she has tried a number of times and, she says, and I accept, the loss of income to her family has been and will be severe.

Leave to appeal

[7] Ms Fehoke may only appeal to the Court of Appeal against my decision 'on a question of law arising in any general appeal', and with leave;1 and as to whether the question she raises does arise in that way is an issue in itself. But, that apart, to obtain leave she must comply with s 144(2), which says this:

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.

[8] The time constraint s 144(2) imposes gives rise to one issue on this application. The other to which it gives rise is more critical. That is whether the question of law Ms Fehoke seeks to advance on appeal has the significance called for. Section 144(1) does not confer a general right of appeal. Nor does s 144(2) give this Court a general discretion. The question of law must be of 'general or public importance,' and whether for that reason, or some other, it is one that 'ought to be

submitted to the Court of Appeal for decision'.2

Time limitation

[9] By my count Ms Fehoke filed her application seeking leave 40 days out of time, after the elapse of almost three times the time allowed for the filing of an application; and that is the first difficulty that she faces.

[10] That delay is to an extent explicable. Until the agency declined to find her work after 14 August 2011, Ms Fehoke had no basis factually to challenge the Judge's conclusion, which I upheld, that a conviction would not, on the face of it, affect her ability to hold or find work. The agency's letter shows that assumption to be incorrect. Nor is the delay after that, though far from slight, necessarily fatal.

[11] The question remains, however, whether Ms Fehoke is able to rely on an event that had not occurred at the date of hearing of the appeal and did not occur until after the time allowed for seeking leave to appeal, to challenge retrospectively a decision consistent with such evidence as there then was. Any point of law resting on such an event beyond any relevant statutory measure of time may not be one 'arising on any general appeal'.

[12] If that is correct then it goes not to discretion but to jurisdiction. But even if it only goes to discretion the decisive point remains whether, in any event, the question of law Ms Fehoke seeks to pursue is sufficiently significant to qualify for a grant of leave.

Question of law

[13] In the District Court and on the appeal the issue whether a conviction, let alone sentence, would be out of all proportion to Ms Fehoke's offence, for the purpose of s 106 - 107 of the Sentencing Act 2002, was resolved by reference to the recent decision of the Court of Appeal R v Hughes;3 a decision later endorsed by the Court, but qualified, in Blythe v R.4

[14] On the appeal, as I recall, Ms Fehoke's counsel accepted that Hughes was definitive as to the test to be applied. She contended that Ms Fehoke satisfied that test and was entitled to be discharged without conviction. On this application for leave, however, Ms Fehoke seeks to say that Hughes does not articulate s 107 accurately, and that is it more accurately articulated in earlier cases like Fisheries

Inspector v Turner.5

[15] I do not myself accept that Hughes articulates the s 107 test inaccurately or that the way in which it expresses that test gives rise to any uncertainty, or that there needs to be recourse to earlier cases in order to understand what s 107 requires; and thus I do not, myself, accept that Ms Fehoke's proposed question of law is of such general or public importance as to justify a grant of leave.

[16] Nor do I consider that the effect of Ms Fehoke's conviction, as it has emerged since I dismissed her appeal, is a sufficient independent reason why leave should be granted. Very difficult though Ms Fehoke's predicament now may be, that cannot invest the question of law she seeks to have the Court of Appeal decide with any greater cogency or significance.

Conclusion

[17] I decline Ms Fehoke leave to appeal to the Court of Appeal, leaving aside the time issue, on the basis that she has not identified a question of law arising from my decision of such significance as to qualify for a second appeal. If Ms Fehoke wishes to pursue her proposed appeal she will have to apply for special leave to the Court of

_{Appeal itself.}

_{P.J. Keane J}

5 Fisheries Inspector v Turner [1978] 2 NZLR 233.