Kovalenko v Police

[2012] NZHC 1457

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000014 [2012] NZHC 1457

BETWEEN  IVAN KOVALENKO Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 June 2012

Counsel:         Applicant in person

S A Bishop for Respondent

Judgment:      26 June 2012

ORAL JUDGMENT OF COLLINS J

[1]      Mr Kovalenko applies for leave to appeal to the Court of Appeal from a decision of this Court given on 29 May 2012.  In that judgment this Court dismissed Mr Kovalenko’s  appeal  from  a decision  of the District  Court  in  which  he was convicted of assaulting his wife.  That conviction followed from the District Court Judge’s factual finding that Mr Kovalenko had thrown the contents of a cup of tea at his wife during the course of a domestic dispute.  Mr Kovalenko was convicted in the District Court and ordered to appear for sentence if called upon to do so within six months.

[2]      In this Court Mr Kovalenko raised two grounds of appeal:

(1)The first ground of appeal was that Mr Kovalenko had been denied a fair trial because he had not had the assistance of an interpreter (refer s 24(g) New Zealand Bill of Rights Act 1990).  Mr Kovalenko also

submitted on appeal that the absence of an interpreter meant that his

KOVALENKO V NEW ZEALAND POLICE HC WN CRI-2012-485-000014 [26 June 2012]

rights under s 25(a), 25(e) and 25(f) New Zealand Bill of Rights Act had been breached.

(2)That the District Court Judge had made an error of fact when he determined that the contents of the cup of tea had been thrown at Mrs Kovalenko.

[3]      Both grounds of appeal were dismissed by this Court. An examination of the

District Court record showed that:

(1)An  appropriately  qualified  and  competent  translator  was  made available to Mr Kovalenko.

(2)       The interpreter sat next to Mr Kovalenko and assisted when required.

(3)Mr Kovalenko, who has a “good command of English”[1] was reluctant to use an interpreter when giving evidence because of the difficulties he would have in thinking in two languages at once.

Accordingly, the appeal based upon the concern that Mr Kovalenko had been denied access to appropriate translation services was dismissed.

[1] To quote from Mr Kovalenko’s counsel in the District Court, see Police v Kovalenko DC Wellington CRI-2011-085-3898 Transcript, 2 February 2012 at 1.

[4]      The appeal against the finding of fact was dismissed because Mr Kovalenko’s explanation that he accidentally spilt the contents of the cup of tea on his wife was not possible to reconcile with his explanation in the District Court of where he was standing in relation to his wife when the contents of the cup of tea ended up on her. His explanation that there had been an accident could also not be reconciled with other evidence relating to the projection of the contents of the cup of tea to other points in the room.

[5]      Mr Kovalenko’s proposed appeal to the Court of Appeal focuses upon the

finding of fact made by the District Court and upheld by this Court.

[6]      Mr  Kovalenko’s  application  for  leave  to  appeal  is  founded  upon  s  144

Summary Proceedings Act 1957. Accordingly he must: (1)    identify a question of law.

(2)demonstrate that the question of law ought, by reason of its general or public importance be submitted to the Court of Appeal;  and

(3)       satisfy this Court that leave should be granted.

[7]      Mr  Kovalenko  has  not  attempted  to  identify any question  of  law  in  his proposed appeal.  He is solely concerned about the adverse finding of fact made by the District Court Judge and the upholding of that finding by this Court.

[8]      In these circumstances this Court cannot grant Mr Kovalenko leave to appeal to the Court of Appeal.  His application must be dismissed.

D B Collins J

Solicitors:

Crown Solicitor, Wellington