MANGA v N Z POLICE [2015] NZCA 459

MANGA v N Z POLICE [2015] NZCA 459 [25 September 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA675/2014[2015] NZCA 459BETWEEN RYAN PAUL MANGAApplicantAND NEW ZEALAND POLICERespondentHearing: 31 August 2015Court: Miller, Fogarty and Mallon JJCounsel: N G Cooke for ApplicantA Todd for RespondentJudgment: 25 September 2015 at 11.30 amJUDGMENT OF THE COURTThe application for special leave to appeal to this Court is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Fogarty J)Introduction[1] This is an application for special leave to appeal the decision of Brown J in the High Court, dismissing an appeal against two convictions.1 Brown J refused leave for a second appeal.21 Manga v New Zealand Police [2014] NZHC 2271 [High Court appeal].2 Manga v New Zealand Police [2014] NZHC 2785.[2] On 17 March 2014, Judge Johns, of the Manukau District Court, found Mr Manga guilty of two charges.3 First, escaping from the lawful custody of Constable Samuel Baker; and, second, injuring Constable Baker with intent to commit the crime of escaping from lawful custody. The prosecution called Constable Baker, Constable Trotter and a doctor.[3] Constables Baker and Trotter were together in a marked police car, in full police uniform. On the morning of 11 May 2013, they saw a stolen vehicle parked outside a superette. They pulled in behind the stolen vehicle and parked close behind it but at a slight angle. As the police car pulled up, the parked stolen car started to reverse on a sharp angle. Constable Baker got out of the police vehicle andran up to the driver's side of the other vehicle, where Mr Manga was driving, yellingat him to stop. Constable Baker tried to pull the key from the ignition. The vehicle kept reversing and the constable ran alongside the vehicle. He deployed pepper spray. By this time the car was heading towards the road and the driver flicked the steering wheel hard, causing the vehicle to turn sharply and causing the constable to be thrown. The passenger was detained, but Mr Manga was able to drive away. He was arrested the following day.[4] An alternative version of facts was put to Constable Baker in cross-examination. That was not accepted by Constable Baker. Corroborative evidence was given by Constable Trotter.[5] The Judge rejected the evidence of Mr Manga that he himself was assaulted, having his hair pulled and being gouged around the eyes and punched. The Judge preferred the evidence of the police witnesses.[6] The Judge's criticism of the applicant's evidence was strong. For example:[24] It beggars belief for you to suggest to this Court that you could not see that it was a police car or that there was a police officer with his arms in your window telling you to stop. I am satisfied beyond reasonable doubt that Constable Baker did tell you to stop, did identify himself as a police officer, and did tell you you were under arrest on a number of occasions. I am satisfied beyond reasonable doubt that he did so in a manner that would have been able to have been heard by you. He did give evidence of having both3 New Zealand Police v Manga DC Manukau CRI-2013-092-5363, 17 March 2014.hands in the car window, one to try and get the key before discovering there was not one, and one he used to protect himself from possible harm by pushing your face away.[7] The second charge was dealt with briefly because of the findings of fact already made, that he intended to escape lawful custody.[8] Mr Manga appealed these convictions. The original notice of appeal advanced the ground of trial counsel incompetence. Brown J granted leave to amend the conviction appeal and for extending the time to appeal sentence.4[9] The Judge considered four grounds of appeal that were being pursued. That the District Court Judge:(a) erred in her assessment of the evidence in finding the applicant was in lawful custody;(b) gave undue regard to the evidence of prosecution witnesses;(c) gave insufficient weight to the evidence of the defence; and(d) erred in her general assessment of the evidence.[10] Brown J then analysed these grounds. It is not necessary to set out this analysis in detail because none of these four grounds were pursued on leave to appeal to the Court of Appeal. It is sufficient to say that the Judge devoted 30 paragraphs of analysis to these issues.[11] As to the appeal against sentence, Brown J found that the District Court Judge approached the matter in accordance with the accepted principles and did not allow an increase in the discount for remorse. He concluded that the final sentence was not manifestly excessive.4 High Court appeal, above n 1, at [4]–[5].Notice of application for special leave to appeal to this Court[12] The question proposed in the notice of application is this:Whether the Judge should have determined the appeal in the absence of material exhibits which were produced at the District Court hearing.It was contended:The matter is of general application and relevance applicable to all matters relating to first tier appeals. It is also important to the outcome in this case.This ground of appeal was not pursued in the hearing before us.The argument before this Court[13] After filing the application for special leave, Mr Manga retained Mr Cooke who argued that Judge Johns should not have sat because of apparent bias.[14] In the course of oral argument, Mr Cooke was challenged as to his ability to raise this argument, it not having been raised in the High Court. Mr Cooke argued, however, that the decision of this Court in Police v Bazley recognised an inherent jurisdiction of this Court to entertain such an argument. 5[15] The provision of appeals from the District Court is governed by statute, not by the inherent jurisdiction of judges of the High Court. The Court of Appeal is itself a statutory court. The inherent jurisdiction that judges of the Court of Appeal have arises from their status as High Court judges.[16] As the information was laid before 1 July 2013, the application for leave is governed by s 144(3) of the Summary Proceedings Act 1957.6[17] Police v Bazley is not authority for the proposition that the Court of Appeal can grant special leave to appeal a decision of the High Court, itself hearing an appeal from the District Court, on the ground that the question is important. InPolice v Bazley the question that the Court of Appeal was prepared to hear was in5 Police v Bazley [1976] 2 NZLR 152 (CA) at 156.6 Criminal Procedure Act 2011, s 397.fact argued before the Judge in the High Court but not pleaded in the application for leave to appeal. Cooke J said:7In opposing the grant of special leave in this case, Mr Upton made the preliminary submission that, if the Supreme Court has refused leave, the questions of law which an applicant may put forward to the Court of Appeal as being involved in the appeal and as justifying special leave must be the same as those unsuccessfully put forward on the application to the Supreme Court. The point of the submission is that the questions formulated for the defendant in this court appear to be wider than those advanced before O'Regan J as justifying leave and rejected by him as insufficient. In particular the question about frequenting and some aspects of the question about felonious intent do not seem to have been expressly relied on when the leave application was argued before the judge by the counsel who then appeared in support, though apparently those questions had been quite fully canvassed before the judge at the hearing of the appeal itself. Mr Upton said that he could cite no authority for his submission, and we see no warrant for fettering the powers of this court under s 144(3) in the way suggested. An application for special leave is not an appeal from the Supreme Court's refusal of leave; it is a separate application. Further consideration may have shown the applicant's advisers that the questions of law involved in an appeal were not correctly or sufficiently defined on the application to the Supreme Court. The Court of Appeal might itself take the view that the true questions differ to some extent from those previously formulated. The power to grant special leave is discretionary. The history of the case and the nature of the questions formulated on the leave application to the Supreme Court would be among the relevant considerations. An applicant who makes a marked change of course will naturally find it harder to obtain special leave. But the only essential conditions of the jurisdiction to grant special leave are those specified in the section itself.(emphasis added)[18] More recently, this Court in Candy v Auckland City Council held:8The Act requires that such a second appeal must be on a question of law arising in the general appeal (s 144(1)). It follows that the judgment of the High Court which the party seeks to challenge must have been asked to address the question. It would be contrary to the policy of general finality of the first appeal to allow leave to bring a second appeal raising a new question of law not raised in the High Court. Under the terms of s 144 leave to appeal to this Court may only be granted for a question of law which by reason of its general or public importance, or for any other reason ought to be submitted to the Court of Appeal for decision. (s 144(3)).(emphasis added)7 Police v Bazley, above n 5, at 156.8 Candy v Auckland City Council CA371/02, 25 February 2003 at [14].[19] That dictum is consistent with Police v Bazley.9 In this case, the issue of bias was not argued in the High Court, nor in the District Court. It is not appropriate that this Court should be called on to consider the issue for the first time, without the benefit of findings and reasons from the courts below.Lack of analysis of competing evidence[20] Mr Cooke also argued there was a failure of the police at trial to disclose the x-ray of Constable Baker's broken finger, despite trial counsel's email request. As aresult, trial counsel was unable to obtain an expert opinion as to the nature or cause of the injury. This ground was not advanced before Brown J in the High Court. It cannot be raised here for the reasons just set out.Disqualification for bias based on knowledge of previous convictions[21] Even if we did have the jurisdiction to hear the apparent bias argument, we think that it is hopeless. Mr Cooke put his argument on a very broad foundation. Essentially, he said that no judge could sit and try a defendant where that judge isaware, directly or indirectly, of the defendant's previous convictions or some ofthem. The reasonable and informed person of whom the Supreme Court spoke inSaxmere Company Ltd v Wool Board Disestablishment Company Ltd would not drawan inference of apparent bias absent something specific about the Judge's reasons orconduct that reasonably suggests it.10 A judge's past adverse rulings and knowledge of the defendant's history do not require or permit per se disqualification.[22] The application for special leave to appeal to this Court is dismissed.Solicitors:Crown Law Office, Wellington for Respondent9 Police v Bazley, above n 5.10 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [97]; Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [98]–[101]; Britton v Police HC Wanganui AP4/97, 22 April 1997; and Police v Pereira[1977] 1 NZLR 547 (SC) at 557–558.