Manga v Police [2014] NZHC 2785 (10 November 2014)

Last Updated: 18 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-146 [2014] NZHC 2785

BETWEEN	RYAN PAUL MANGA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	On the papers
Counsel:	Appellant on own behalf N Whittington and R Gibson for Respondent
Judgment:	10 November 2014

_{JUDGMENT OF BROWN J}

This judgment was delivered by me on 10 November 2014 at 12 noon, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, Auckland

Copy To: Apellant

MANGA v POLICE [2014] NZHC 2785 [10 November 2014]

[1] In a decision dated 18 September 2014¹ I dismissed Mr Manga’s appeals against his convictions on 17 March 2014 of escaping lawful custody and injuring with intent to commit a crime, namely escaping lawful custody.

[2] The appellant has now filed a notice of application for leave for a second appeal against his conviction. Such an appeal is governed by s 144 of the Summary Proceedings Act 1957 which 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 or against any determination of the High Court on a question of law arising in any general appeal: 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] The leading authority on s 144 is R v Slater in which the general principle to be applied was stated as follows:²

Section 144 was not intended to provide a second tier of appeals from decisions of a District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subs (2) and (3) are met and leave to appeal is granted. 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.

[4] Accordingly the essential elements which must be established before leave can be granted are:

¹ _{Manga v Police [2014] NZHC 2271.}

² R v Slater [1997] 1 NZLR 211 (CA) at 212.

(a) A question of law;

(b) The question must be one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal; and

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

[5] It is also clear that any qualifying point of law must be arguable on the facts. As the Court of Appeal stated in Candy v Auckland City Council:³

It is also well established that, before the High Court or this Court, in the exercise of its discretion, will grant leave or special leave to appeal, that Court will require to be satisfied that there is a tenable argument available on the question of law raised. Again it would be contrary to the statutory policy to grant leave to argue a point which was considered not seriously arguable by the Court asked to grant leave. That is so even if the question concerned is of significant interest to or affects numerous members of the public as we are prepared to assume is the case with the present application.

[6] The application was filed out of time. The reason for this appears to be that the appellant, who is now unrepresented, mistakenly attempted to file the appeal in the Court of Appeal registry. By letter dated 7 October 2014 the Deputy Registrar of the Court of Appeal advised the appellant that he needed to seek the leave of the High Court to be able to bring his appeal to the Court of Appeal. The present application for leave was filed in the High Court on 28 October 2014, that is within

21 days after the date of the Court of Appeal’s letter. In the circumstances I extend the time for the filing of the appellant’s application for leave in the High Court.

[7] As the Crown submissions in opposition note, the formulation of the grounds of appeal on the first appeal was a tortuous process. The original notice of appeal described the sole ground of appeal as trial counsel error. That notice was withdrawn with leave on 20 August 2014 and the time for filing the appeal extended. The appeal against conviction subsequently proceeded on the basis of the four

_{grounds recorded at [22] of the judgment.}

³ Candy v Auckland City Council CA371/02, 17 February 2003 at [15].

[8] The grounds of appeal (including those listed in that part of the document relating to the admissibility of evidence at trial) which are foreshadowed on the current leave application comprise the following points:

Judicial errors/failed to regard defence evidence.

Counsel competency/failure to follow instructions, did not advise client of submissions or work and progress.

Medical evidence

• Biased prosecution medical expert/and or witness.

• Paramedic Report, the freshness of this report has critical relevancy.

• Evidence exhibits (defence) the credibility of these exhibits are relevant to my grounds to appeal.

[9] The proposed question of law is identified as being:

Following a general error of assessment of the lower court on a particular matter, was the appellate Judge entitled to embark on an independent assessment of this matter regardless of the absence of relevant evidence exhibits that were crucial to the credibility of the dispute towards the lower courts error?

[10] The manner in which the appeal is said to involve a matter of general public importance or that a miscarriage of justice may have occurred is explained as follows:

Tribunal and appellate Judicial assessments of a relevant matter were inaccurate in the interests of general and public importance, an institute which condemns and punishes “must” take care to do so accurately so as to ensure a miscarriage of Justice does not occur and that public relationships or trust in the Justice System are maintained. I have been convicted of an offence of which I did not commit namely an injury of a police officer, the officers injury was indeed self inflicted and I should not be convicted and punished for something I didn’t do.

Discussion

[11] I do not consider that the alleged error in the form of the failure to have regard to the defence evidence raises a true question of law. However even if it was able to be analysed in that manner, it would only affect the applicant and could not amount to a matter of general or public importance justifying further appellate consideration.

[12] I do not consider that the complaint of counsel competency is open to the appellant. As noted above, this complaint, which was the original sole ground of appeal in the High Court, was withdrawn. It was not pursued on the appeal before me and I do not consider that it is open to the appellant to resurrect it at the point where leave is sought to bring a second appeal.

[13] So far as concerns the medical evidence, no allegation of bias was raised on the appeal in the High Court and I am unable to see how the “freshness” of the paramedic report could amount to a question of law. In any event these matters are case specific and do not raise a matter of general or public importance.

[14] It was apparent during the hearing of the appeal that copies of the photographs produced in the District Court as Exhibit A and Exhibit 3 were not available. The appellant’s lawyer did not seek an adjournment of the hearing for the purpose of seeking to locate the photographs. The Crown submits that, as the absence of the photographs was not considered significant at the time of the High Court hearing, then it is too late to raise the issue now for the purposes of a second appeal to the Court of Appeal.

[15] A similar situation occurred in Police v Cox⁴ where the recording machine in the District Court had malfunctioned with the result that the notes of evidence omitted a considerable part of the evidence heard by the District Court Judge.

[16] The Court of Appeal held that the deficiency in the notes of evidence was manifest not only to counsel but also to the Judge. As the matter of the deficiency was not raised in the High Court, nor was any application for rehearing made in that court, it was too late to raise the point when special leave to appeal was applied for in the High Court. In my view the same approach should be applied in the present

_case.

⁴ Police v Cox [1989] NZCA 91; [1989] 2 NZLR 293 (CA).

Decision

[17] For the reasons stated above, I do not consider that the proposed appeal to the Court of Appeal raises any question of law. However, even if any of the issues sought to be raised on appeal could be analysed as a question of law, none of them are of general or public importance justifying their being submitted to the Court of Appeal for a second appeal.

_{[18] The application for leave to appeal is dismissed.}

Brown J