WIKI v POLICE [2018] NZHC 2378

WIKI v POLICE [2018] NZHC 2378 [10 September 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-146[2018] NZHC 2378BETWEEN VICTORIA MARIGOLD MARGARETWIKIAppellantAND NEW ZEALAND POLICERespondentHearing: On the papersJudgment: 10 September 2018JUDGMENT OF GORDON JThis judgment was delivered by meon 10 September 2018 at 4.00 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, AucklandCopy To: The appellantIntroduction[1] On 21 August 2018, I gave a decision dismissing Ms Wiki's appeal againstconviction and sentence.1 Ms Wiki had pleaded guilty in the District Court to onecharge of wilful trespass and one charge of assault on a female constable. In short, MsWiki had entered New World on Queen Street where she had previously beentrespassed, and while being processed after her arrest, she spat on an officer's arm.[2] Ms Wiki has filed in this Court what purports to be a copy of a notice of appealto the Court of Appeal dated 28 August 2018 (as opposed to an application for leaveto bring a second appeal).2The application[3] Ms Wiki has also filed an application in this Court for access to courtdocuments dated 28 August 2018. She seeks a transcript of the hearing of her appealon 21 August 2018. She says a transcript of submissions is requested.[4] Ms Wiki says that the reason she wants the transcript is because she cannothear and is deaf. She says the transcript will be needed for the Court of Appeal whereshe intends to lodge an appeal. Ms Wiki says, overall, she seeks a re-hearing in theDistrict Court.Relevant legal principles[5] Requests for access to court documents fall under the Senior Courts (Access toCourt Documents) Rules 2017 (the Rules).[6] As Ms Wiki was a party to this appeal, she has a general right to search, inspectand copy any part of the court file or any document relating to the proceeding.31 Wiki v New Zealand Police [2018] NZHC 2156.2 See Criminal Procedure Act 2011, ss 239(1) and 255(1).3 Senior Courts (Access to Court Documents) Rules 2017, r 9(4).[7] However, the transcript of Ms Wiki's appeal does not fall within the definitionof a document, in the context of an appeal, or within the definition of the court file.4That is because there is at present no written transcript of the appeal hearing in thisCourt. The only resource available is the electronic recording of the hearing.[8] Therefore, Ms Wiki does not have a right to access the transcript. Rule 3(3)provides that the Rules do not require a Registrar or any other person to prepare adocument that is not in existence at the time a person asks to access it.[9] The Court of Appeal stated in Mackenzie v Attorney-General, "[b]ecause thereis time and expense involved in the preparation of a transcript of a hearing, transcriptsare not prepared as a matter of course".5[10] The Supreme Court's comments in Siemer v Heron provide guidance as towhether Ms Wiki should be granted access to the transcript:6[9] There are obvious resource implications if judges direct courtregistries to provide parties with transcripts of hearings of appeals andinterlocutory matters general on demand by litigants. For that reason, judgesshould always first satisfy themselves that there is good reason in the interestsof justice for giving such directions [11] I also note Dobson J's comments in Misiuk v Superintendent of a PenalInstitution:7[19] The resources of the Ministry to undertake such transcription arelimited Obviously, any widespread practice of producing transcripts ofelectronic recordings in response to requests would create substantialresourcing difficulties for the Ministry.Analysis[12] Ultimately, I am satisfied that there is no good reason in the interests of justicefor directing that a transcript of the appeal hearing be provided to Ms Wiki.4 Rule 4.5 Mackenzie v Attorney-General [2016] NZCA 24 at [22].6 Siemer v Heron [2011] NZSC 116. See also Mackenzie v Attorney-General, above n 5, at [22];Cook v Housing New Zealand Corp [2017] NZHC 3202 at [11].7 Misiuk v Superintendent of a Penal Institution HC Auckland CIV-2010-404-6625, 8 October 2010.[13] I start with the grounds of Ms Wiki's (apparent) notice of appeal to the Courtof Appeal. In that document, Ms Wiki says:I could not hear and provided documents to show this. The lawyer in theDistrict Court didn't give me the right information. I didn't want a guilty plea.I could not hear or understand, so how can you sentence me?[14] However, those grounds need to be considered against the contents ofMs Wiki's handwritten and signed letter dated 12 April 2018 to the District Courtwhich do not suggest that Ms Wiki's guilty plea was not a considered one. She says:Dear Your Honour,I am sorry I am back before the Court, and for disrespecting the police.I am trying hard to stay away from bad people, and to stay out of trouble. Iwas panicked and confused when I was arrested and I am very ashamed of myactions.I am hoping to get back involved with counselling for my issues with drugsand alcohol, and I hope you take this into account when sentencing me.[15] The next reason is that Ms Wiki's appeal to the Court of Appeal will be asecond appeal. Section 237 of the Criminal Procedure Act 2011 (the Act) governsapplications for leave to bring a second appeal against a conviction.8 It provides asfollows:237 Right of appeal against determination of first appeal court(1) A convicted person may, with the leave of the second appeal court,appeal to that court against the determination of the person's firstappeal under this subpart.(2) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance;or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.8 See s 253 of the Criminal Procedure Act for applications for leave to bring a second appeal againstsentence.[16] The standard under s 237(2)(a) is a high one. The threshold is unlikely to bemet unless the proposed appeal gives rise to an issue of general principle or of generalimportance in the administration of the criminal law by the Courts, such as one havinga broad application beyond the circumstances of a particular case.9 The threshold fora miscarriage of justice under s 237(2)(b) is similarly high, with not every erroramounting to a miscarriage.10[17] I regard Ms Wiki's prospects of success on appeal as extremely low. As I notedin my judgment, Ms Wiki pleaded guilty to the charges, and she accepted the facts onwhich the charges and convictions were based.11 As to her sentence appeal, thesentence of 12 months' supervision was not out of range given Ms Wiki's culpability.12[18] I accept that in the appeal hearing in the High Court, Ms Wiki made it clear tome that she was hard of hearing. However, there were no oral submissions from therespondent to which Ms Wiki was required to respond. The respondent had filed awritten memorandum and I did not call on counsel for the respondent to address theCourt orally.[19] In all these circumstances, I am satisfied that there is no good reason in theinterests of justice for granting Ms Wiki access to the transcript.Result[20] Ms Wiki's application for access to the transcript is refused.___________________________________Gordon J9 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].10 McAllister v R, above n 9, at [38].11 Wiki v New Zealand Police, above n 1, at [10].12 At [17].