TITO v NEW ZEALAND POLICE [2023] NZCA 618

TITO v NEW ZEALAND POLICE [2023] NZCA 618 [5 December 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA341/2023[2023] NZCA 618BETWEEN KEVIN-JOHN TITO AND TUI-DOROTHYTITOApplicantsAND NEW ZEALAND POLICERespondentCourt: Courtney and Collins JJCounsel: Applicants in personJ P Golightly for RespondentJudgment:(On the papers)5 December 2023 at 9.00 amJUDGMENT OF THE COURTA The application for leave to extend time to appeal is declined.B The application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)[1] On 17 June 2021, the New Zealand Police | Ngā Pirihimana o Aotearoa revokedMr and Mrs Tito's firearms licences on the basis that they were not fit and properpersons to hold such licences. The revocation of the licences followed a threat Mr andMrs Tito made against a Member of Parliament in 2018 and threats and abuse that theydirected towards staff at the Māori Land Court and their landlord. The latter twoincidents occurred in March 2021.[2] An appeal seeking to overturn the revocation orders was dismissed by theDistrict Court on 9 September 2022.1[3] Mr and Mrs Tito then sought leave to appeal to the High Court pursuant tos 296 of the Criminal Procedure Act 2011. On 24 May 2023, Campbell J declinedtheir application and ordered Mr and Mrs Tito pay the police $3,295.50 by way ofcosts.2[4] On 28 June 2023, Mr and Mrs Tito applied for leave to appeal to this Court andfor an extension of time to bring a second appeal. It is convenient to deal first withthe application to bring a second appeal.[5] Although Mr and Mrs Tito have not committed an offence their applicationsare governed by the Criminal Procedure Act. This is because s 64 of the Arms Act1983 states:64 Appeal on a question of law(1) Where any party to any appeal under section 62B or to any applicationunder section 63 is dissatisfied with the decision of the District CourtJudge as being erroneous in point of law, he may appeal to the HighCourt on the question of law only.(2) Subpart 8 of Part 6 of the Criminal Procedure Act 2011 applies as faras applicable with the necessary modifications to every appeal underthis section.[6] There are two reasons why the Criminal Procedure Act prevents Mr andMrs Tito from applying for leave to pursue a second appeal to this Court.[7] First, under s 213(3) of the Criminal Procedure Act "[a]n appeal court'sdecision to give or refuse leave is final unless otherwise expressly provided by thisPart or any other Act".[8] There is nothing in any Act that changes the effect of s 213(3) of theCriminal Procedure Act. Therefore, the judgment of Campbell J declining Mr andMrs Tito leave to appeal to the High Court was final.1 Tito v Police [2022] NZDC 16431 [District Court judgment].2 Tito v Police [2023] NZHC 1235 [High Court judgment].[9] Second, any possible appeal to this Court would be a second appeal.Section 303(1) of the Criminal Procedure Act states:(1) A party to a first appeal under this subpart may, with the leave of thesecond appeal court, appeal under this subpart to that court against thedetermination of the first appeal.[10] In Nottingham v District Court at Auckland, this Court explained that aHigh Court decision declining leave to appeal to the High Court was not a"determination of the first appeal" for the purposes of s 303 of the Criminal ProcedureAct.3[11] In Nottingham it was noted that s 300 of the Criminal Procedure Act requiresa first appeal court to determine a first appeal by taking any of the steps set out ins 300(1) of the Criminal Procedure Act. Declining leave is not listed as a way in whichthe first appeal court may determine an appeal.4[12] Before we could consider granting leave to Mr and Mrs Tito, there would havehad to have been a first appeal that determined their appeal from the District Court. Inthis case, that has not happened. There was never a determination of Mr andMrs Tito's proposed first appeal. It therefore follows, that absent a first appeal whichdetermined the appeal, there cannot be a second appeal.[13] This Court does not have jurisdiction to consider Mr and Mrs Tito's applicationfor leave to appeal to this Court. Accordingly, their application for an extension oftime for leave to appeal is redundant and their application for leave to appeal isdeclined.3 Nottingham v District Court at Auckland [2018] NZCA 345, [2018] NZAR 1308 at [18].4 At [17].Result[14] The application for leave to extend time to appeal is declined.[15] The application for leave to bring a second appeal is declined.Solicitors:Marsden Woods Inskip Smith, Whangārei for Respondent