Diffin v Police no.2

[2012] NZHC 2594

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-470-0011 [2012] NZHC 2594

BETWEEN  LEONARD GEORGE DIFFIN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 October 2012 (by telephone) Counsel:          L G Diffin, in person, Appellant

N G Belton for Respondent

Judgment:      5 October 2012

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 5 October 2012 at 4.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, PO Box 13063, Tauranga
Copy to:

Mr L G Diffin, Appellant

DIFFIN V NEW ZEALAND POLICE HC TAU CRI 2012-470-0011 [5 October 2012]

Introduction

[1]      Mr Diffin seeks leave to appeal to the Court of Appeal1 against his conviction on one charge of making an intimate visual recording.2

[2]      Initially, after a defended hearing in the District Court at Tauranga, Mr Diffin was found guilty on two such charges and not guilty on two others.3    On appeal to this Court one of those convictions (relating to the filming of a form of intimate physical activity being undertaken between Mr Diffin and his then partner) was set aside.4   Leave to appeal is sought in respect of the remaining conviction, arising out of the filming of an elderly lady’s breasts, albeit substantially covered by clothing.

Jurisdiction

[3]      Generally, a person convicted on a summary offence in the District Court is entitled to one appeal.  That appeal is brought to this Court.  Leave may be given for a second appeal if stringent criteria set out in s 144(2) of the Summary Proceedings Act 1957 are met. That provision states:

144  Appeal to Court of Appeal

...

(2)       A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one 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.

....

1      Summary Proceedings Act 1957, s 144(2).

2      Crimes Act 1961, ss 216H and 216G..

3      Police v Diffin DC Tauranga CRI 2011-070-2390, 16 February 2012 (Judge Wolff).

4      Diffin v Police [2012] NZHC 2283.

[4]      In R v Slater,5 the Court of Appeal considered the extent of the jurisdiction to grant leave.  It did so in the context of 144(3), an analogous provision that allows the Court of Appeal to grant special leave to appeal.   Delivering the judgment of the Court of Appeal, Thomas J identified three components:6

a)       Is there a qualifying question of law?

b)Is  the  question  one  which,  by  reason  of  its  general  and  public importance or for any other reason, ought to be submitted to the Court of Appeal?

c)       Is the Court from which leave is being sought of opinion that the question it ought to be so submitted?

[5]      Section 144(2) was not intended to provide a general second tier of appeal from decisions of the District Court in proceedings under the Act.  As the Court of Appeal said in Slater:7

… Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

Analysis

[6]      Mr Diffin filed extensive submissions, in advance of the hearing, in which he identified the issues he wished to raise.  Most are concerned with factual errors he believes were made by the District Court Judge, albeit on the basis of evidence that he contends was manipulated by the Police.  Other complaints include whether his trial counsel followed instructions in relation to questions of disclosure and cross- examination of witnesses and whether the Police engaged in unlawful activity by

manipulating the electronic evidence of the images taken.

5      R v Slater [1997] 1 NZLR 211 (CA).

6      Ibid, at p 215.

7 Ibid.

[7]      One illustrate will suffice.  Mr Diffin continues to seek access to a memory device relevant to the recording of the elderly woman’s breasts to obtain information as to its format, when it was created, when it  was last accessed and other like information.  He contends that this will demonstrate that his version of events was correct and that the District Court Judge was wrong to reject his evidence.

[8]      Many of the issues raised by Mr Diffin arise out of findings of fact made by the District Court Judge after hearing and seeing the witnesses give evidence.   A second appeal is not, as s 144(2) makes clear, an opportunity to revisit such findings. There is no question of law arising in relation to any of the issues raised by Mr Diffin; still less is there one of the character required to submit the case to a second appeal.

[9]      Independently, however, I have considered whether the point argued by Mr Diffin’s counsel at the appeal on 20 July 2012 justifies the grant of leave.  While my judgment demonstrates that the point was arguable, I do not consider it falls within the criteria required to allow a second appeal.8

[10]     I make two comments in relation to other points raised by Mr Diffin:

(a)      Insofar as they purport to criticise counsel’s preparation and conduct of  the  defended  hearing,  such  matters  cannot  be  considered  on  a second appeal when they were not in issue on the first.  If Mr Diffin believes that he has a valid complaint, he is entitled to make one to the New Zealand Law Society.9

(b)      Concerns about Police conduct can be raised with the Independent

Police Complaints Authority.

[11]     Unless Mr Diffin were to apply for special leave to appeal directly from the Court of Appeal, this proceeding is at an end on delivery of this judgment.  While the result of this decision is to leave Mr Diffin’s conviction on the one remaining charge

intact, the Court of Appeal has accepted that an appellate Court has an inherent

8      Diffin v Police [2012] NZHC 2283 at paras [26]–[37].

9 Lawyers and Conveyancers Act 2006, ss 130 and 132.

power to revisit its decisions in exceptional circumstances of a kind that give rise to a  risk  of  a  substantial  miscarriage  of  justice  if  a  fundamental  error  were  not corrected.  If Mr Diffin wishes to pursue matters further he needs to go through the separate processes to which I have referred10 to ascertain whether anything arises out of them that could justify an application for his original appeal to this Court to be reheard.11  That is something on which Mr Diffin would be wise to take legal advice.

Result

[12]     For those reasons, the application for leave to appeal to the Court of Appeal is dismissed.

P R Heath J

Delivered at 4.00pm on 5 October 2012

10     See para [9] above.

11     R v Smith [2003] 3 NZLR 617 (CA) at paras [36]–[38] (Elias CJ, giving the judgment of herself, Anderson and Glazebrook J).