PHILLIPS v NEW ZEALAND POLICE [2019] NZHC 2330

PHILLIPS v NEW ZEALAND POLICE [2019] NZHC 2330 [16 September 2019]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2019-406-15[2019] NZHC 2330BETWEEN KATHERINE ANN PHILLIPSAppellantAND NEW ZEALAND POLICERespondentHearing: 6 September 2019Appearances: Appellant in PersonJ W N Cameron for the RespondentJudgment: 16 September 2019JUDGMENT OF CULL J[1] Ms Phillips seeks to appeal her conviction of criminal harassment from April2000. She unsuccessfully appealed her conviction in July 2000, and now seeks thisCourt's leave, 19 years later, to appeal to the Court of Appeal.[2] Ms Phillips was convicted on 17 April 2000 of one charge of criminalharassment at the District Court at Blenheim. She appealed to the High Court unders 115 of the Summary Proceedings Act 1957 but Wild J dismissed the appeal.1 Shenow seeks leave to appeal from the High Court decision out of time.[3] Ms Philips is self-represented. Her grounds of appeal are general. They allege,among other matters, breaches of her fair trial rights and a miscarriage of justice. TheCrown opposes the grant of leave to appeal.1 Phillips v New Zealand Police HC Blenheim AP3/00, 20 July 2000.Relevant law[4] As the decision being appealed from dates from 2000, the applicable law is thenow repealed Summary Proceedings Act 1957. Section 144 of the Act provides:144 Appeal to Court of Appeal(1) Either party may, with the leave of the High Court, appeal to the Courtof Appeal against any determination of the High Court on any casestated for the opinion of the High Court under section 107 of this Actor against any determination of the High Court on a question of lawarising in any general appeal: Provided that, if the High Court refusesto grant leave to appeal to the Court of Appeal, the Court of Appealmay grant special leave to appeal.(2) A party desiring to appeal to the Court of Appeal under this sectionshall, within 21 days after the determination of the High Court, orwithin such further time as that Court may allow, give notice of hisapplication for leave to appeal in such manner as may be directed bythe rules of that Court, and the High Court may grant leaveaccordingly if in the opinion of that Court the question of law involvedin the appeal is one which, by reason of its general or publicimportance or for any other reason, ought to be submitted to the Courtof Appeal for decision.(3) Where the High Court refuses leave to any party to appeal to the Courtof Appeal under this section, that party may, within 21 days after therefusal of the High Court or within such further time as the Court ofAppeal may allow, apply to the Court of Appeal, in such manner asmay be directed by the rules of that Court, for special leave to appealto that Court, and the Court of Appeal may grant leave accordingly ifin the opinion of that Court the question of law involved in the appealis one which, by reason of its general or public importance or for anyother reason, ought to be submitted to the Court of Appeal fordecision.[5] Section 144(2) applies where an extension of time for filing leave to appeal isrequired. As this appeal was not filed within 21 days of the High Court's decision,this Court may grant leave if 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 besubmitted to the Court of Appeal. In R v Knight, Richardson P discussed the Court'sapproach in exercising the discretion to extend time:22 R v Knight [1998] 1 NZLR 583 (CA). Note Richardson P was discussing the equivalent provisionunder s 388 of the Crimes Act 1961. the starting point must be the principle that a conviction obtained accordingto law as it was then understood and applied should stand. Leave to appeal outof time on the ground that there has been a restatement of the applicable lawshould be granted only where special circumstances can be shown to justify adeparture from the principle of finality. The applicant must demonstrate somespecial feature or features particular to the case that lead to the conclusion thatin all the circumstances justice requires that leave be given. Amongst theconsiderations which will also be relevant in that overall assessment are thestrength of the proposed appeal and the practical utility of the remedy sought,the length of the delay and the reasons for delay, the extent of the impact onothers similarly affected and on the administration of justice, that is floodgatesconsiderations, and the absence of prejudice to the Crown.[6] More recently, in Butcher v R the Court of Appeal has confirmed that it willentertain an appeal many years out of time only in exceptional circumstances.3Applications for leave to appeal out of time involve a balancing test, in whichrelevant considerations include the wider interests of society in the finality ofdecisions, the strength of the proposed appeal, whether the liberty of thesubject is involved, and the practical utility of any remedies sought. Theextent of the impact on others affected and on the administration of justice,and any prejudice to the Crown are also relevant. A long delay can be a majorfactor weighing against leave, and, where unexplained, can be decisive.Grounds of appeal[7] Ms Phillips' grounds of appeal are wide-ranging. She contends that herbehaviour in 1999 did not meet the criminal standard of harassment. She says that thedocuments or exhibits before the Court were unlawful, containing her incorrect name,which is Katherine Ann Starr Phillips, not Katherine Ann Phillips as charged.Although Ms Phillips was entitled to a jury trial, this did not occur, and she says herguarantee of a fair and impartial trial under the New Zealand Bill of Rights Act 1990was not followed.[8] Further, Ms Phillips alleges she was illegally detained at the Havelock PoliceStation and, among other submissions, alleges the original Trial Judge was intimidatedby the police prosecutor. She says the police officer in charge of the case had conflictsof interest because of his relationships with the complainants, and her counsel failedto represent her properly.3 Butcher v R [2015] NZCA 102 at [7] (footnotes omitted).[9] The Crown opposes Ms Phillips' leave application, and submits the issue onappeal is confined to whether leave should be granted to bring a further appeal out oftime only. The substantive grounds of the appeal cannot ultimately be resolved by thisCourt, the Crown says, but may have some relevance on the decision to grant leave, ifthe threshold for granting leave is met.Discussion[10] Ms Phillips' application for appeal has been filed 19 years after her convictionwas first entered. Following her conviction in the District Court, Ms Phillips lodgedan appeal in time, which came before Wild J. His decision is comprehensive andexamines each of the grounds of appeal raised, including that the Trial Judgemisdirected himself and amended the charging information to cover incidentsoccurring either side of 9 December 1999. Wild J undertook an assessment of thepattern of behaviour alleged against Ms Phillips and considered whether it amountedto harassment under the Harassment Act 1997. From Ms Phillips' oral and writtensubmissions, it is unclear which aspects of Wild J's decision, if any, are challenged byher present leave application.[11] When pressed for the reason for her delay in making her application, MsPhillips did not wish to advance any reasons, relying on her "fundamental, democraticright to appeal to the Court" and that she does not have to give a reason why there hasbeen such a long delay.[12] I turn, then, to apply the relevant considerations in Butcher v R to this case. Iacknowledge the wider interests of society is served by the finality of decisions, andnote that the liberty of the appellant is not involved here. The only practical utility ofthe remedy sought is the quashing of Ms Phillips' conviction but that relies on anassessment of the strength of the proposed appeal.[13] Unfortunately, I do not consider there is anything in Ms Phillips' submissionswhich justifies a departure from the principle of finality. In the absence of evidence,there is no proper basis to examine the allegations of pressure on the Trial Judge,inadequacy of counsel, or the allegation that the Court documents are tainted byillegality in this proceeding.[14] Wild J's decision canvassed the matters raised by Ms Phillips in relation to thetrial deficiencies alleged, and he rejected them with proper and full reasons. MsPhillips' grounds of appeal contain serious allegations, such as judicial intimidation atfirst instance, conflict of interest and illegal detention, but there is little or nosupporting evidence for such allegations.[15] Asher J noted in Butcher v R that "[t]his Court has affirmed on numerousoccasions that it will only entertain an appeal that is many years out of time, such asthis, in exceptional circumstances."4 In that case, the Court of Appeal was consideringan extension of time to appeal against an assault conviction entered four yearspreviously and refused leave.[16] The effect of her conviction clearly concerns Ms Phillips, but her applicationfor leave before me does not provide the special features that are required to justifyleave.[17] I do not find it is in the interests of justice to hear the appeal, noting as I do therequirement of s 144(2) of the Summary Proceedings Act that there must be a questionof law involved in the appeal which has general or public importance requiring adetermination. There is no such discernible question of law here.[18] Without any further explanation for the 19 to 20 year delay, I find that it is notin the interests of justice to grant Ms Phillips leave to appeal out of time.Result[19] The application for leave to appeal is declined.Cull JSolicitors:O'Donoghue Webber, Nelson for the Respondent4 Butcher v R, above n 3, at [7].