Clarke v Ministry of Social Development [2014] NZHC 1830 (5 August 2014)

Last Updated: 20 August 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-58 [2014] NZHC 1830

NEIL MARTIN CLARKE Appellant

v

MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	5 August 2014
Counsel:	Appellant in Person E M Light for Respondent
Judgment:	5 August 2014

_{JUDGMENT OF RONALD YOUNG J}

[1] Mr Clarke faces five charges of using a document for pecuniary advantage and one of using a forge document. Prior to the trial Mr Clarke made a pre-trial application under s 147 of the Criminal Procedure Act 2011 for a discharge of all charges. Although a number of grounds for the application were identified, as I understand it, only discharge based on delay was pursued.

[2] Mr Steven Tunley, an investigator with the Ministry of Social Development, gave evidence and was cross-examined at the pre-trial application. Mr Clarke who had filed an affidavit in support of the s 147 application was also cross-examined. Counsel for Mr Clarke and the Ministry of Social Development filed and made submissions although the application itself, as I have noted, was filed personally by

_{Mr Clarke.}

CLARKE v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 1830 [5 August 2014]

[3] The Judge in the District Court identified what he thought was a six month delay between the identification of the offending and filing of the information. He did not consider such a delay would be sufficient for a discharge and accordingly refused the application.

[4] Mr Clarke filed written submissions in support of the appeal.

[5] There appear to be procedural impediments to Mr Clarke’s “appeal”. There is no right to appeal a pre-trial refusal to discharge a defendant under s 147 of the Criminal Procedure Act 2011. Leave to appeal may however be given on a question of law which is properly identified.¹

[6] In his notice of appeal Mr Clarke identified what seems to be his grounds seeking leave.² All are fact based. First, Mr Clarke says that the delay in charging him which he says is from February 2013 to December 2013 was in breach of s 25(b) of the New Zealand Bill of Rights Act 1990. He says there was undue delay. This is a factual matter in the circumstances and does not raise any point of law. His complaint is not that the Judge misinterpreted the law in rejecting the claim of undue delay.

[7] Secondly, Mr Clarke says that s 32(2) of the Criminal Procedure Act 2011 was breached. He says that the prosecution did not take all reasonably practical steps to notify him that he had been summoned to appear before Court. As to this claim, this was not an issue dealt with by the Judge in the District Court and cannot therefore be the subject of an appeal. Further, it is plainly a question of fact. Finally, it is difficult to see how even if a breach of s 32(2) could be established that it could result in a s 147 discharge unless there could no longer be a fair trial. No such concern was expressed by Mr Clarke. I reject the ground as a basis for granting

_leave.

¹ _{Criminal Procedure Act 2011, s 296.}

2. No application for leave to appeal is made, however, given Mr Clarke is a lay litigant I assume an application has been made. This will not prejudice the respondent.

[8] The third matter relates to s 30(1) of the Criminal Procedure Act 2011. That section relates to the issue and in particular the issuing of a summons under ss 28 or

29 of the Act.

[9] Mr Clarke says he was not aware of the date on which the informant filed the charges but “it is questionable if they abided by this legislation”. Again this is no ground of challenge. It was not dealt with by the District Court Judge nor does it raise any question of law. Nor has it any relevance to the outcome of the trial.

_{[10] I refuse leave to appeal there being no identified question of law.}

_{Ronald Young J}

Solicitors:

Luke Cunningham & Clere, Crown Solicitors, Wellington