LOPAS v NEW ZEALAND POLICE [2020] NZHC 349

LOPAS v NEW ZEALAND POLICE [2020] NZHC 349 [2 March 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-184[2020] NZHC 349BETWEEN GLEN JAMES LOPASAppellantAND NEW ZEALAND POLICERespondentHearing: 2 March 2020Counsel: Appellant in personC White for RespondentJudgment: 2 March 2020JUDGMENT OF CHURCHMAN JBackground[1] On 29 November 2019, the intended appellant (Mr Lopas) filed a documenttitled "Notice of appeal out of time" in the High Court.[2] This document related to a conviction that had been entered against Mr Lopasin the District Court at Christchurch on 28 February 2018. The offence involved hadtaken place on 16 December 2016 and involved a charge under s 36A(1)(c) of the LandTransport Act 1988 (the Act) relating to the operation of a motor vehicle in a mannerthat caused the vehicle to undergo sustained loss of traction in contravention ofs 22A(3) of the Act.The law[3] Section 231 of the Criminal Procedure Act 2011 requires that a notice ofappeal, or application for leave to appeal must be filed within 20 working days afterthe date of sentence for the conviction appealed against. Mr Lopas was sentenced onthe day of his conviction. Therefore, the appeal was nearly two years' out of time.[4] Rule 8.5 of the Criminal Procedure Rules 2012 provides that a notice for leaveto appeal that is given out of time, it must be treated as if it contained an applicationfor leave to appeal out of time.[5] Rule 8.4(2)(e) provides that where an appeal or application for leave is out oftime, the reasons for seeking an extension of time must be provided.Further evidence[6] Mr Lopas also wants, as part of his appeal, to have the Court consider furtherevidence. The particular evidence relates to footage from CCTV cameras thatMr Lopas installed outside his property some six months after the date of hisconviction. The evidence is said to show the complainant or others associated withhim harassing Mr Lopas and also making marks on the verge outside the complainant'sproperty similar to the mark that Mr Lopas was found to have made in relation to thecharge upon which he was convicted.[7] Correspondence filed by Mr Lopas also indicates that he wanted the Court toissue subpoenas against a person who gave evidence for the prosecution in the originalhearing and the unidentified owner of a particular motor vehicle that Mr Lopassubmitted was relevant.Prior minute[8] By a minute dated 17 February 2020, the Court outlined for the benefit ofMr Lopas, who is self-represented, what was required by way of application for leaveto appeal out of time and leave to adduce further evidence. Mr Lopas was encouragedto file an affidavit explaining the delay in filing his appeal application and setting outthe details of the further evidence he wanted to submit. He was also encouraged toobtain legal advice.[9] The date of 10 am on 2 March 2020 was set to deal with the two leaveapplications.[10] Mr Lopas did not file any affidavits or any leave application. Neither did heseek legal assistance. Instead, he sent a letter to the Registrar dated 18 February 2020which, amongst other things, expressed his belief that he had an "automatic right to beheard in an appeal". The letter also suggested that the original complainant, and anemployee of his, had fabricated evidence in the original proceedings and lied to theCourt. The letter also made allegations of inappropriate behaviour on the part of thePolice amounting to what was said to be "bias-cronyism".[11] At the hearing on 2 March, Mr Lopas explained the delay in him filing anappeal resulted from the fact he did not obtain a CCTV camera until six months afterthe conviction and the relevant material captured by the CCTV camera took some timefor him to collect.[12] Mr Lopas claimed that the material showed that on occasions when he or hiswife had created some dust exiting his driveway, later that day the complainant orsomeone associated with him damaged the grass verge outside the complainant'shouse. The inference he wanted the Court to draw was that the complainant did thisin order to get him into trouble again, and in order to manufacture evidence againsthim that the complainant could then take to the Police. However, Mr Lopasacknowledged that there was no evidence that the complainant had approached thePolice about these incidents. Mr Lopas dismissed this on the basis of what he saidwas collusion on the part of the Police officers involved. He implied that thecomplainant would have contacted the Police trying to get him in trouble again but thePolice officer who took the complaint would not have made any record of it becausehe was in collusion with the complainant.[13] During the course of the hearing, Mr Lopas claimed that the skid mark whichhad been the subject of video evidence available to the original Court could only havebeen made by a vehicle going in the opposite direction to that alleged. He said he hadnot originally noticed this, and it was not pointed to the Judge.The legal test[14] The guiding principle in relation to requests to extend time for leave to appealis whether the grant of such an application is in the interest of justice in a particularcase.1 It is for the applicant to provide sufficient information to satisfy the Court thata grant of leave is in the interests of justice.2 In particular, the interest of justice maybe ascertained in each case through a balancing test between the wider test interests ofsociety in the finality of decisions against the interest of the individual applicant inhaving the conviction reviewed.3[15] The Court of Appeal has indicated that relevant considerations for consideringthe balancing test would include:4The strength of the proposed appeal and the practical utility of the remedysought, the length of the delay and the reasons for delay, the extent of theimpact on others similarly affected and on the administration of justice, that isfloodgates considerations, and the absence of prejudice to the Crown.[16] The approach taken by the Court is that where there is a short and explainabledelay, leave is more likely to be granted whereas longer unexplained delays will beless successful.5Analysis[17] The delay here is a very lengthy one; the offence involved is at the lower endof the scale (the penalty was a $400 fine, Court costs and a period of disqualification);the period of disqualification has long since expired; there is little merit in the appeal– effectively what Mr Lopas is inviting the Court to do is to make different factualfindings from those made by the Judge; he is also inviting the Court to speculate as towhat significance can be drawn from behaviour on the part of the complainant thatoccurred years after the events in question and more than six months after theconviction and sentence date; effectively what Mr Lopas was inviting the Court to dowas to allow the appeal and send the matter back for a rehearing. Given the length of1 R v Knight (1997) 15 CRNZ 322 (CA) at 336.2 R v Davis [2007] NZCA 577 at [13].3 R v Knight above no 1 at 336.4 At 338.5 At 338.time that had elapsed since the offence, this would cause considerable prejudice to theprosecution.Conclusion[18] Mr Lopas has not adequately explained the length of delay. The furtherevidence that he wants the Court to admit is not relevant to the original conviction anddoes not come close to providing grounds for an appeal.[19] There is no basis for the granting for the application for leave to call furtherevidence. Mr Lopas has no idea what evidence Mr Hildyard or the other unidentifiedproposed witness would actually give as he has not spoken to them. What he reallywanted to do was to have an opportunity to cross-examine them. He wants to have are-run of the original hearing. That is not what the appeal process is about.Result[20] The applications for leave to appeal out of time and leave to call furtherevidence are dismissed.[21] As Mr Lopas has not been granted leave to appeal, the hearing date allocatedto hear the appeal is vacated.Churchman JSolicitors:Crown Solicitor's Office, Christchurch for Respondentcc: G J Lopas