FRANCE v NEW ZEALAND POLICE [2020] NZHC 2625

FRANCE v NEW ZEALAND POLICE [2020] NZHC 2625 [6 October 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2020-404-000104[2020] NZHC 2625BETWEEN MALCOLM FRANCEAppellantAND NEW ZEALAND POLICERespondentHearing: 06 October 2020Appearances: Appellant in personE H K Rangamuwa for the RespondentJudgment: 6 October 2020ORAL JUDGMENT OF CAMPBELL JSolicitors/Counsel:Meredith Connell, AucklandCopy to:AppellantIntroduction[1] In March 2019 the appellant, Mr France, appeared before Justices of the Peacein the Auckland District Court for trial on charges of three infringement offences.These were:(a) operating a private vehicle not displaying current evidence of vehicleinspection: fined $200;1(b) providing false or misleading information as to identity: fined $750;2and(c) drove without appropriate current driver licence: fined $300. 3[2] Mr France was found guilty and fined by the Justices of the Peace.[3] Mr France appealed the decision. The hearing of the appeal was scheduled inthe Auckland District Court on 5 March 2020 before Judge Henwood.[4] Mr France failed to appear at the hearing of that appeal. Judge Henwooddismissed the appeal for non-appearance and no prosecution.[5] On 23 March 2020, Mr France appealed to this Court against Judge Henwood'sdecision. Because his appeal is a second appeal, Mr France required leave to appeal.Mr France did not seek leave at the time that he filed his appeal. But he subsequentlyfiled an application for leave to appeal dated 5 August 2020. That application for leaveto appeal was scheduled for hearing before me today.[6] In advance of today's hearing Mr France, who is representing himself, filedfurther submissions directed at his substantive appeal.[7] It is not going to be necessary for me to address either of Mr France'ssubmissions. This is because the respondent has itself submitted that leave to appeal1 Land Transport Act 1998, ss 6 and 34; maximum penalty: fine not exceeding $2,000.2 Land Transport Act 1998, ss 14 and 44; maximum penalty: fine not exceeding $10,000.3 Land Transport Act 1998, ss 5 and 31; maximum penalty: fine not exceeding $1,000.should be granted, and the appeal should be allowed with the matter remitted back tothe District Court for reconsideration of the first appeal.[8] The respondent's submission is based on s 338 of the Criminal Procedure Act2011 (the Act). Section 338(1) empowers an appeal Court (in this case the relevantappeal Court being the District Court hearing Mr France's first appeal) to dismiss anappeal if the appellant fails to comply with a timetable or other procedural order fixedfor the appeal. However, before dismissing an appeal under this provision, the appealCourt must, under s 338(2), first give the appellant 10 working days' notice of itsintention to dismiss the appeal. The Court cannot dismiss the appeal if, after noticehas been given, the appellant rectifies the non-compliance within the notice periodgiven by the Court.[9] The respondent says that Judge Henwood's ability to dismiss the first appealon the basis of Mr France's failure to appear at the hearing arose from s 338. Therespondent accepts that Judge Henwood did not give any notice to Mr France of herintention to dismiss the appeal. Because of the failure to give that notice, therespondent says that the appeal should be allowed.[10] The respondent then notes that, if an appellant appeals against the dismissalunder s 338 of a first appeal, and the second appeal Court considers that the appealshould be allowed, s 339(6) requires that the appeal be allowed and the matter remittedto the court appealed from, with any directions it considers appropriate.[11] I agree with the respondent's ultimate submission, but for slightly differentreasons. It is not clear to me that Judge Henwood was relying, or needed to rely, ons 338. The High Court and Court of Appeal have held that an appeal court retains,outside s 338, an inherent power to dismiss an appeal for want of prosecution.4 TheJudge did not mention s 338, and it seems to me more likely that she was relying onthat inherent power.4 Mangu v R [2015] NZCA 151 and Spiers v New Zealand Police [2019] NZHC 641.[12] But that inherent power must be exercised with care.5 Typically it has beenexercised when the appellant has repeatedly failed to appear, or has, in addition tofailing to appear, failed to file submissions or any other papers in advance of thehearing.6 That was not this case. Mr France should have been given at least one afurther opportunity to advance his appeal before it was dismissed for want ofprosecution.[13] For those reasons, whether the Judge was relying on s 338 or relying on theCourt's inherent power, I agree with the respondent's position that the appeal shouldbe allowed. Likewise, I agree that the appropriate course is to remit the matter to theDistrict Court with the direction that Mr France be given one further opportunity toadvance his appeal.7[14] I therefore grant leave to appeal. I allow the appeal and remit the matter to theAuckland District Court, where I direct that a further hearing be scheduled to allowMr France one further opportunity to advance his appeal.[15] I record that this morning I received a memorandum and (purported)interlocutory application from Mr France in reply to the respondent's position.Mr France asked the matter to stay in the High Court "as it involves a tort". After Idelivered the above judgment Mr France repeated the request. I decline the request,which is misplaced. The only matter before this Court is Mr France's appeal in acriminal proceeding. If Mr France wishes to pursue a tort or other civil claim, he mustdo so in a separate proceeding.______________________Campbell J5 Spiers v New Zealand Police [2019] NZHC 641 at [7].6 For examples, see Spiers v New Zealand Police [2019] NZHC 641, and the cases cited in [4] ofthat judgment.7 This is so, whether or not s 338 (and therefore s 339(6)) applies.