DERMOT GREGORY NOTTINGHAM v HEMI TAKA, MARTIN RUSSELL HONEY AND STEPHANIE FRANCIS HONEY [2018] NZSC 102

DERMOT GREGORY NOTTINGHAM v HEMI TAKA, MARTIN RUSSELL HONEY AND STEPHANIEFRANCIS HONEY [2018] NZSC 102 [5 November 2018]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 73/2018[2018] NZSC 102BETWEEN DERMOT GREGORY NOTTINGHAMApplicantAND HEMI TAKA, MARTIN RUSSELL HONEYAND STEPHANIE FRANCIS HONEYRespondentsCourt: William Young, O'Regan and Ellen France JJCounsel: Applicant in personD W Grove for RespondentsJudgment: 5 November 2018JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant is to pay the respondents costs of $2,500.____________________________________________________________________REASONS[1] The applicant seeks leave to appeal against a decision of the Court of Appeal1in which he was refused leave to appeal against two High Court decisions.2 Both hadtheir origins in a private prosecution brought by the applicant against the threerespondents in the District Court. All charges were dismissed by Judge Paul3 and heordered the applicant to pay costs totalling $117,000 under the Costs in Criminal CasesAct 1967.41 Nottingham v District Court at Auckland [2018] NZCA 345 (Asher, Brown and Clifford JJ)[Nottingham (CA)].2 Nottingham v The District Court at Auckland [2017] NZHC 1715 (Paul Davison J) [Nottingham(Paul Davison J)]; and Nottingham v Honey [2017] NZHC (Downs J) [Nottingham (Downs J)].3 Nottingham v Honey [2016] NZDC 9272.4 Nottingham v Honey DC Auckland CRI-2014-004-03937, 13 July 2016.[2] The applicant sought leave to appeal against Judge Paul's decision dismissingthe charges and the award of costs. This application was brought under s 296 of theCriminal Procedure Act 2011 which provides:296 Right of appeal(1) This section applies if a person has been charged with an offence.(2) The prosecutor or the defendant may, with the leave of the first appealcourt, appeal under this subpart to that court on a question of lawagainst a ruling by the trial court.(3) The question of law in a first appeal under this subpart must arise—(a) in proceedings that relate to or follow the determination of thecharge; or(b) in the determination of the charge (including, withoutlimitation, a conviction, an acquittal, the dismissal of thecharge under section 147, or a stay of prosecution).[3] In the first of the High Court decisions, Paul Davison J refused leave to appealand, in doing so, he addressed directly the costs argument.5[4] It would have been open to the applicant to have appealed, without leave,against the costs decision. This is provided for in s 271 of the Criminal Procedure Act.There is, however, a time limit which can be extended by the first appeal court.6 Afterthe judgment of Paul Davison J was released, the applicant sought an extension of timeunder s 271 to file a separate appeal in respect of costs. This application was dismissedby Downs J on the basis that the proposed appeal would be an abuse of process.7[5] By reason of s 213(3) of the Criminal Procedure Act, a decision to give orrefuse leave to appeal is "final". Rejecting an argument by the applicant to thecontrary, the Court of Appeal held that this provision was applicable to the decision ofPaul Davison J.8 It also held that s 303, which provides for rights of appeal against5 Nottingham (Paul Davison J), above n 2, at [120]–[121].6 Criminal Procedure Act 2011, s 273.7 Nottingham (Downs J), above n 2, at [14].8 Nottingham (CA), above n 1, at [18]."the determination of the first appeal", was not engaged as the decision refusing leaveto appeal was not a "determination" for the purposes of that section.9[6] In dealing with the challenge to the judgment of Downs J, the Court concludedthat there is no right of appeal to the Court of Appeal from such a decision, citing anumber of cases decided under similar provisions of the Summary Proceedings Act1957.10 In absence of a right of appeal, the Court found it had no jurisdiction to heara challenge to the judgment of Downs J.11[7] In support of his application for leave to appeal to this Court, in respect of thejudgment of Paul Davison J, the applicant repeats the submissions advanced to andrejected by the Court of Appeal.[8] Although the judgment of Paul Davison J is lengthy, it is perfectly clear thathe dealt with the case as an application for leave to appeal under s 296 and not as asubstantive appeal. The order he made was to dismiss the application for leave toappeal.12 For the reasons given by the Court of Appeal, that decision was final. It wasnot susceptible to challenge in the Court of Appeal.[9] We are likewise of the view that there was no jurisdiction to challenge in theCourt of Appeal the decision by Downs J to refuse an extension of time. No suchjurisdiction is conferred by the Criminal Procedure Act which provides for appealsonly against the "determination of the first appeal", an expression which does notencompass the refusal of an extension of time to appeal. In any event, if the dismissalof the application for an extension of time were to be treated as a determination of anappeal, a further appeal to the Court of Appeal would require leave (under s 276),which has been refused.[10] This Court relevantly has jurisdiction to deal only with appeals authorised byPart 6 of the Criminal Procedure Act.13 The proposed appeal is not within any head9 At [17] and [18].10 At [27]–[31], citing O'Byrne v Waimakariri District Council [2012] NZCA, [2012] NZAR 848;and Douglas v R [2014] NZCA 219.11 At [32].12 Nottingham (Paul Davison J), above n 2, at [136].13 Senior Courts Act 2016, s 71.of jurisdiction provided under that Act. As to this, we note that s 213 to which wehave already referred provides that an appeal court's decision to give or refuse leaveis final unless otherwise expressly provided for. This provision is as applicable to theSupreme Court as it is to the Court of Appeal and makes it clear that we do not havejurisdiction to entertain appeals against decisions of the Court of Appeal to refuseleave.14 We add that the applicant does not meet the criteria for leap frog appeals.[11] The application for leave to appeal is dismissed. The applicant is to pay therespondents costs of $2,500.Solicitors:Foy & Halse, Auckland for Respondents14 Lihou v R [2015] NZSC 161; Gorgus v R [2016] NZSC 161; Brown v New Zealand Police [2017]NZSC 121; and Pese v R [2017] NZSC 77. In his written submissions to this Court, the applicantcited several decisions of the Supreme Court of Appeal of South Africa to the effect that a decisionof the High Court refusing to leave to appeal is susceptible to appeal to the Supreme Court ofAppeal with the special leave of that Court. However, those decisions are particular to theirstatutory context.