PATERSON v NEW ZEALAND POLICE [2020] NZCA 139 at 3.30 pm]

PATERSON v NEW ZEALAND POLICE [2020] NZCA 139 [4 May 2020 at 3.30 pm]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA527/2019[2020] NZCA 139BETWEEN PHILIP ANTHONY PATERSONApplicantAND NEW ZEALAND POLICERespondentCourt: Courtney, Ellis and Brewer JJAppearances: Applicant in personZ R Johnston for RespondentJudgment:(On the papers)4 May 2020 at 3.30 pmJUDGMENT OF THE COURTA Leave to bring a second appeal against conviction is declined.B Leave to bring a second appeal against sentence is declined for want of jurisdiction.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Paterson pleaded guilty to one charge of wilful trespass. On 5 September2018, Judge Garland convicted Mr Paterson and ordered him to appear for sentence ifcalled upon within nine months.1 That period has long expired.[2] Mr Paterson has always represented himself.1 Police v Paterson [2018] NZDC 21458.[3] Mr Paterson appealed his conviction and his sentence to the High Court. Hisgrounds were:(a) Conviction: The prosecution case was that his presence at a watersupply tank amounted to trespass because the tank was on landdescribed as "the Wilberg Farm". Mr Paterson accepted it would betrespass for him to go on the Wilberg Farm but said the water supplytank was not on the Wilberg Farm.2(b) Sentence: During the sentencing Judge Garland mistakenly attributedto Mr Paterson a list of convictions relating to a co-defendant.[4] It seems the High Court never decided Mr Paterson's appeal against hissentence. When the appeal came for hearing before Osborne J on 15 March 2019, theJudge decided he had to adjourn the appeal to enable the parties to bring clarifyingevidence on the precise location of the water supply tank. In his minute of 18 March2019, Osborne J said:3Mr Paterson has appealed both the conviction and the sentence. In this MinuteI am focused on the conviction.[5] The appeal eventually came before Dunningham J for hearing on 25 July2019.4 Dunningham J dealt only with the appeal against conviction. There was nomention of the sentence.5[6] Mr Paterson now seeks leave to bring a second appeal to this Court againstboth his conviction and his sentence. To be granted leave, Mr Paterson must satisfyus his appeal involves a matter of general or public importance or that a miscarriageof justice may have occurred or may occur unless his appeal is heard.62 Mr Paterson had previously been served with a trespass notice in relation to the Wilberg Farm.3 Paterson v Police HC Christchurch CRI-2018-418-4, 18 March 2019 at [2].4 Paterson v Police [2019] NZHC 1796.5 For some reason, Crown counsel treated the complaint about the sentence as being part of theappeal against conviction and submitted the complaint was irrelevant to the appeal againstconviction. Dunningham J did not mention it.6 Criminal Procedure Act 2011, s 237.Discussion[7] As to the conviction, Mr Paterson does not raise an issue of general or publicimportance. Rather, he asserts a miscarriage of justice. As best we can make out, hiscomplaints are that Dunningham J conducted the appeal hearing by telephone andshould not have accepted the prosecution evidence as to the location of the watersupply tank.[8] There is nothing in either of these points which can establish a miscarriage ofjustice. While an appeal against conviction should be heard in open court, there is norecord of an objection to the procedure being made by Mr Paterson, nor does he assertnow that he did make an objection.7 Mr Paterson had filed his written submissionsand was able to speak to them during the telephone hearing. There has been no breachof natural justice and no miscarriage of justice.[9] As to the location of the water supply tank, Dunningham J had maps putforward by Mr Paterson which did not show the boundaries of the Wilberg Farm.The Judge also had maps put forward by the prosecution which did show theboundaries of the Wilberg Farm and within them the water supply tank. There wasalso a statement from one of the farmers of the Wilberg Farm confirming the watersupply tank is on the Wilberg Farm land. The Judge was entitled to treat the mapsprovided by the prosecution as the more reliable for the reasons she gave.Decision[10] Leave to bring a second appeal against conviction is declined.[11] We have no jurisdiction to entertain an appeal against the sentence becauseMr Paterson's first appeal to the High Court has yet to be determined. Crown counselshould now ensure the appeal against sentence, if Mr Paterson wishes to pursue it, isprogressed without further delay. Leave to bring a second appeal against sentence isdeclined for want of jurisdiction.7 The telephone hearing procedure was directed by Osborne J; there was a suggestion by the Crownthat this was to spare Mr Paterson having to travel to Christchurch from his home on the WestCoast.Solicitors:Crown Law Office, Wellington for Respondent.