Hastie v Police HC Christchurch CRI-2010-409-000222 [2011] NZHC 1426 (31 October 2011)

Last Updated: 9 November 2011

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI-2010-409-000222}

BRADLEY KEITH HASTIE

Applicant

v

POLICE

Respondent

Judgment: 31 October 2011

JUDGMENT OF HON JUSTICE FRENCH

on Application for Leave to Appeal

_{(on the papers)}

Introduction

[1] On 9 September 2011 I allowed Mr Hastie‟s appeal against conviction, but

directed that there be a rehearing in the District Court.

[2] Mr Hastie now wishes to appeal my decision to grant a rehearing to the Court of Appeal.

[3] In order to be able to do that, he requires leave under s 144 of the Summary

Proceedings Act 1957.

[4] Before leave to appeal can be granted under s 144 there must be:

_{(i) A question of law.}

HASTIE V POLICE HC CHCH CRI-2010-409-000222 31 October 2011

(ii) The question must be 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.

(iii) The Court must be of the opinion it ought to be so submitted.

[5] It is well established that s 144 is not intended to provide a second tier of appeals from the District Court, and that neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted: see R v Slater [1977] 1 NZLR 211 at

214.

Grounds of the application

[6] The application formulates two questions for submission to the Court of

Appeal:

(i) Was the High Court correct to find that the discretion to order a rehearing pursuant to s 131 of the Summary Proceedings Act

1957 is unfettered?

(ii) If the High Court is correct that the decision is unfettered, did the High Court exercise its power to order a rehearing in conformity with the authorities binding the Court?

[7] In support of the application, counsel Mr Maze argued that there were two conflicting lines of High Court authority as to when a rehearing would be granted, and that Court of Appeal guidance was required to give greater certainty. Mr Maze submitted that the principle a party has a single chance to prove its case was fundamental to the adversarial justice system and that uncertainty was undermining the integrity of the adversarial system. In his submission it was in the public interest for this matter to be addressed so potential appellants would be able to make a meaningful assessment as to the consequences of appealing an unlawful conviction.

Discussion

[8] I am satisfied that neither of the proposed questions warrants the granting of leave.

[9] All that was said in my judgment about the nature of the discretion was as follows:

The power to order a rehearing is derived from s 131 of the Summary Proceedings Act 1957. On the face of it, the discretion is an unfettered one, and as Mr Maze acknowledged, the Court of Appeal has not attempted to define the circumstances where it may be appropriate to allow the prosecution a second chance to prove its case.

[10] In my view, the propositions of law contained in that paragraph are unexceptional, and do not give rise to any issues of general or public importance.

[11] “On the face of it” was intended to convey the fact that the legislature has not set out any criteria to be taken into account in exercising the discretion. The case law does identify factors which I endeavoured to apply.

[12] What is at issue is a discretion. I do not agree that there are two conflicting lines of authority which require resolution by the Court of Appeal.

[13] As regards the second question, if I have failed to apply settled law correctly, then that is case-specific and not a matter of general importance. It also cannot be said in the circumstances that there has been any miscarriage of justice as far as Mr Hastie is concerned.

[14] The application is accordingly dismissed.

Solicitors:

R W Maze, Christchurch

Crown Solicitor„s Office, Christchurch