Kovalenko v The Queen

[2012] NZCA 613

IN THE COURT OF APPEAL OF NEW ZEALAND

CA434/2012
[2012] NZCA 613

BETWEEN  IVAN KOVALENKO
Applicant

AND  THE QUEEN
Respondent

Court:             Ellen France, Randerson and White JJ

Counsel:         Applicant in Person
A R van Echten for Respondent

Judgment:      20 December 2012 at 2.00pm

(On the papers)

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

1. Mr Kovalenko seeks special leave to appeal to this Court against his conviction in the District Court at Wellington on one count of assaulting his wife.[1]

   [1]      Police v Kovalenko DC Wellington CRI-2011-085-3898, 13 February 2012.

2. It is necessary for Mr Kovalenko to seek special leave to appeal because his appeal to the High Court against his conviction was dismissed[2] and his subsequent application to that Court for leave to appeal to this Court was declined.[3]

   [2]      Kovalenko v Police [2012] NZHC 1184.

   [3]      Kovalenko v Police [2012] NZHC 1457.

3. Mr Kovalenko’s conviction relates to a domestic incident involving the contents of a teacup.  After a defended hearing in the District Court at which Mr Kovalenko and his wife both gave evidence, Judge Hastings found that Mr Kovalenko had assaulted his wife by intentionally flicking the contents of the teacup over her.  He was convicted of the offence of assault under s 9 of the Summary Offences Act 1981 and ordered to appear for sentence if called upon within six months.

4. Mr Kovalenko’s appeal to the High Court against his conviction was dismissed because Collins J rejected both of the issues raised, namely that:

   (a)       Mr Kovalenko did not receive a fair trial because he was not able to speak English adequately; and

   (b)       the District Court Judge had misinterpreted the evidence concerning the trajectory of the contents of the teacup.

5. Collins J was satisfied that there was an appropriately qualified translator available to assist Mr Kovalenko and that there was no breach of his right to an interpreter.

6. Mr Kovalenko’s application to the High Court for leave to appeal was dismissed on the ground that he had not attempted to identify any question of law in his proposed appeal, which was concerned solely with the adverse finding of fact made by the District Court Judge which had been upheld by the High Court.

7. Mr Kovalenko’s application to this Court for special leave to appeal is brought on the ground that his wife gave perjured evidence and that the police, District Court and High Court have perpetuated the perjury.

8. An applicant for special leave to appeal to this Court is required by s 144(3) of the Summary Proceedings Act 1957 to satisfy this Court that:

   (a)       there is a question of law;

   (b)       the question of law is one that ought to be submitted to this Court by reason of its general or public importance, or for some other reason; and

   (e)       the Court is of the opinion that it ought to be submitted.

9. It is well established that these criteria are to be strictly applied[4] and that s 144 does not provide a second tier of appeals from the District Court.[5]

   [4]      R v Slater [1997] 1 NZLR 211 (CA) at 215.

   [5]      Nottingham v T CA216/00, 26 March 2001 at [13].

10. Mr Kovalenko’s application for special leave raises no question of law.  He is still endeavouring to challenge the finding of fact made by the District Court Judge which was upheld by the High Court.  The criteria for special leave are therefore not met.

11. The application for special leave to appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent