PHILLIPS v NEW ZEALAND POLICE [2020] NZCA 425

PHILLIPS v NEW ZEALAND POLICE [2020] NZCA 425 [17 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA541/2019[2020] NZCA 425BETWEEN KATHERINE ANNE STARR PHILLIPSApplicantAND NEW ZEALAND POLICERespondentHearing: 1 September 2020Court: Kόs P, Wylie and Muir JJCounsel: Applicant in personC A Brook for RespondentJudgment: 17 September 2020 at 9 amJUDGMENT OF THE COURTThe application for special leave to appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Muir J)Introduction[1] Ms Phillips seeks special leave to appeal a conviction entered in theDistrict Court at Blenheim in April 20001 and in respect of which a subsequent appealto the High Court was unsuccessful.2 For the reasons that follow we are satisfied thather application should be declined.1 New Zealand Police v Phillips DC Blenheim CRI-1999-006-762451, 17 April 2000.2 Phillips v New Zealand Police HC Blenheim AP3/00, 20 July 2000.Background[2] Ms Phillips' conviction was for criminal harassment. The District Court Judgefound that she had harassed the wife of a male companion in a manner and for aduration which satisfied the criteria in s 8 of the Harassment Act 1997. She wasordered to come up for sentence if called upon within a year and to pay modestwitnesses' expenses. She appealed that judgment to the High Court. Wild J dismissedher appeal on 20 July 2000.[3] In 2019, having previously made an unsuccessful direct application tothe Court of Appeal,3 she sought leave from the High Court to appeal the conviction.In her judgment dated 16 September 2019, Cull J declined the application.4 She heldthat the proposed appeal did not engage any issue of law of general or publicimportance and noted that Ms Phillips had failed to provide any explanation forthe near 20-year period between her conviction and application. She considered thatthere was nothing in the application which justified a departure from the principles offinality.The current application[4] The application for special leave is premised on alleged error of law inthe District Court decision. Ms Phillips says that she was charged under the nameKatherine Ann Phillips with a birth date of 28 August 1949, when her correct name isKatherine Anne Starr Phillips and her date of birth 28 June 1949. She says thatthe information filed against her was "false" and an abuse of process, that the law is a"precise discipline" and that her conviction is a nullity "in the same way as a bigamousmarriage".Discussion[5] Because of the historic nature of the offending, Ms Phillips' rights are governedby s 144 of the Summary Proceedings Act 1957. This provides:3 Phillips v New Zealand Police [2019] NZCA 277.4 Phillips v New Zealand Police [2019] NZHC 2330.144 Appeal to Court of Appeal—(1) Either party may, with the leave of the [High Court], appeal to theCourt of Appeal against any determination of the [High Court] on anycase stated for the opinion of the [High Court] under section 107 ofthis Act or against any determination of the [High Court] on a questionof law arising in any general appeal:Provided that, if the [High Court] refuses to grant leave to appeal tothe Court of Appeal, the Court of Appeal may grant special leave toappeal.(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 theCourt of Appeal under this section, that party may, within 21 days afterthe refusal of the [High Court], or within such further time as the Courtof Appeal 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.[6] In order to be granted special leave to appeal to this Court, Ms Phillips musttherefore identify a question of law which by reason of its general or publicimportance, or for any other reason, is appropriate for submission.[7] In her decision declining leave, Cull J correctly set out the principles applicableto an application for leave to bring an appeal out of time.5 She cited Richardson P'sobservations in R v Knight, discussing the equivalent provision under s 388 ofthe Crimes Act 1961 where he said :6 the starting point must be the principle that a conviction obtained accordingto law as it was then understood and applied should stand. Leave to appealout of time on the ground that there has been a restatement of the applicable5 At [5]–[6].6 R v Knight [1998] 1 NZLR 583, (1997) 15 CRNZ 332 (CA) at 588–589.law should be granted only where special circumstances can be shown tojustify a departure from the principle of finality. The applicant mustdemonstrate some special feature or features particular to the case that lead tothe conclusion that in all the circumstances justice requires that leave be given.Amongst the considerations which will also be relevant in that overallassessment are the strength of the proposed appeal and the practical utility ofthe remedy sought, the length of the delay and the reasons for the delay,the extent of the impact on others similarly affected and on the administrationof justice, that is floodgates considerations, and the absence of prejudice tothe Crown.[8] She also appropriately cited Butcher v R where this Court confirmed that it willentertain an appeal many years out of time only in exceptional circumstances:7Applications 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 ofthe subject is involved, and the practical utility of any remedies sought.The extent of the impact on others affected and on the administration ofjustice, and any prejudice to the Crown are also relevant. A long delay can bea major factor weighing against leave, and, where unexplained, can bedecisive.(Footnotes omitted.)[9] In the present case the decisive factors against the grant of special leave areMs Phillips' failure to identify any question of law of general or public importanceand her failure to adequately explain the delay in her application.[10] Neither the failure of the information to include her alleged third given name"Starr" or the apparent error in respect of her birth date satisfy the criteria identifiedin s 144(3) of the Summary Proceedings Act. At the time the position was governedby s 204 of that Act, which provides:204 Proceedings not to be questioned for want of formNo information, complaint, summons, conviction, sentence, order, bond,warrant, or other document, and no process or proceeding shall be quashed,set aside, or held invalid by any [District Court] or by any other Court byreason only of any defect, irregularity, omission, or want of form unless theCourt is satisfied that there has been a miscarriage of justice.7 Butcher v R [2015] NZCA 102 at [7].[11] In a recent decision under the present day equivalent, s 379 of the CriminalProcedure Act 2011 (the CPA), this Court has observed:8In New Zealand, such considerations have tended to be dealt with under s 379of the CPA (or its predecessors), where miscarriage must be established inorder to invalidate a defective charge. This means that New Zealand courtshave tended to be less strict on the prior question of nullity. A chargingdocument will be a nullity if it fails to disclose an offence, or a defendant, oris so unintelligible that the nature of the offence cannot be ascertained. Suchwill also be the case where the charge lacks a required statutory consent, or isout of time. To void a charging document therefore, relevant defects must beso radical as to deprive the document of its essential character. Technical ormechanical defects will not suffice, and the courts will be slow to reach such a"drastic conclusion". It follows that even serious defects will be protected bys 379 of the CPA if, despite the impugned defect, the document nonethelessdiscloses a recognisable charge, a recognisable defendant, (where necessary)is in time and is supported by statutory consents. But if one or more of theseelements is missing, "there is nothing before the Court capable ofrectification".(Footnotes omitted, emphasis added.)[12] Despite the alleged omission and error, the information laid against Ms Phillipsdisclosed a recognisable charge and recognisable defendant. Ms Phillips gaveevidence in the proceeding. At no time did she claim she was not the person charged.Her only other grounds relate to unsubstantiated allegations against judicial officers.In assessing whether a question of general or public importance is engaged onan intended appeal, this Court may legitimately consider the strength of the underlyingargument.9 In this case the argument is untenable.[13] Nor does Ms Phillips adequately explain the reasons for the almost 20-yeardelay in seeking leave to appeal her conviction. Indeed, as she did before Cull J,Ms Phillips advanced a "fundamental democratic right to appeal" for which she wasnot obliged to give reasons,10 seemingly ignoring the gateway requirements ofs 144(3). Pressed, she said that she had spent the intervening period unable to elicitthe interest of any legal practitioner to take her case. There is, however, no evidencebefore this Court explaining why it took nearly 20 years to exhaust these avenues.8 Talley's Group Ltd v WorkSafe New Zealand [2018] NZCA 587, [2019] 2 NZLR 198 at [45].9 Jones v Wellington City Council [2017] NZCA 261 at [19].10 Phillips v New Zealand Police, above n 4, at [11].Result[14] We dismiss the application for special leave to appeal to this Court.Solicitors:Crown Law Office, Wellington for Respondent