IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI 2020-404-000104
[2020] NZHC 2625	

BETWEEN	MALCOLM FRANCE
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	06 October 2020	
Appearances:	Appellant in person
E H K Rangamuwa for the Respondent	
Judgment:	6 October 2020	

ORAL JUDGMENT OF CAMPBELL J

Solicitors/Counsel:
Meredith Connell, Auckland Copy to:
Appellant

FRANCE v NEW ZEALAND POLICE [2020] NZHC 2625 [6 October 2020]

Introduction

[1]	In March 2019 the appellant, Mr France, appeared before Justices of the Peace in the Auckland District Court for trial on charges of three infringement offences. These were:

(a)	operating a private vehicle not displaying current evidence of vehicle inspection: fined $200;1

(b)	providing false or misleading information as to identity: fined $750;2 and

(c)	drove without appropriate current driver licence: fined $300. 3

[2]	Mr France was found guilty and fined by the Justices of the Peace.

[3]	Mr France appealed the decision. The hearing of the appeal was scheduled in the Auckland District Court on 5 March 2020 before Judge Henwood.

[4]	Mr France failed to appear at the hearing of that appeal. Judge Henwood dismissed the appeal for non-appearance and no prosecution.

[5]	On 23 March 2020, Mr France appealed to this Court against Judge Henwood’s decision. Because his appeal is a second appeal, Mr France required leave to appeal. Mr France did not seek leave at the time that he filed his appeal. But he subsequently filed an application for leave to appeal dated 5 August 2020. That application for leave to appeal was scheduled for hearing before me today.

[6]	In advance of today’s hearing Mr France, who is representing himself, filed further submissions directed at his substantive appeal.

[7]	It is not going to be necessary for me to address either of Mr France’s submissions. This is because the respondent has itself submitted that leave to appeal

1	Land Transport Act 1998, ss 6 and 34; maximum penalty: fine not exceeding $2,000.
2	Land Transport Act 1998, ss 14 and 44; maximum penalty: fine not exceeding $10,000.
3	Land Transport Act 1998, ss 5 and 31; maximum penalty: fine not exceeding $1,000.

should be granted, and the appeal should be allowed with the matter remitted back to the District Court for reconsideration of the first appeal.

[8]	The respondent’s submission is based on s 338 of the Criminal Procedure Act 2011 (the Act). Section 338(1) empowers an appeal Court (in this case the relevant appeal Court being the District Court hearing Mr France’s first appeal) to dismiss an appeal if the appellant fails to comply with a timetable or other procedural order fixed for the appeal. However, before dismissing an appeal under this provision, the appeal Court must, under s 338(2), first give the appellant 10 working days’ notice of its intention to dismiss the appeal. The Court cannot dismiss the appeal if, after notice has been given, the appellant rectifies the non-compliance within the notice period given by the Court.

[9]	The respondent says that Judge Henwood’s ability to dismiss the first appeal on the basis of Mr France’s failure to appear at the hearing arose from s 338. The respondent accepts that Judge Henwood did not give any notice to Mr France of her intention to dismiss the appeal. Because of the failure to give that notice, the respondent says that the appeal should be allowed.

[10]	The respondent then notes that, if an appellant appeals against the dismissal under s 338 of a first appeal, and the second appeal Court considers that the appeal should be allowed, s 339(6) requires that the appeal be allowed and the matter remitted to the court appealed from, with any directions it considers appropriate.

[11]	I agree with the respondent’s ultimate submission, but for slightly different reasons.  It is not clear to me that Judge Henwood was relying, or needed to rely, on  s 338. The High Court and Court of Appeal have held that an appeal court retains, outside s 338, an inherent power to dismiss an appeal for want of prosecution.4 The Judge did not mention s 338, and it seems to me more likely that she was relying on that inherent power.

4	Mangu v R [2015] NZCA 151 and Spiers v New Zealand Police [2019] NZHC 641.

[12]	But that inherent power must be exercised with care.5 Typically it has been exercised when the appellant has repeatedly failed to appear, or has, in addition to failing to appear, failed to file submissions or any other papers in advance of the hearing.6 That was not this case. Mr France should have been given at least one a further opportunity to advance his appeal before it was dismissed for want of prosecution.

[13]	For those reasons, whether the Judge was relying on s 338 or relying on the Court’s inherent power, I agree with the respondent’s position that the appeal should be allowed. Likewise, I agree that the appropriate course is to remit the matter to the District Court with the direction that Mr France be given one further opportunity to advance his appeal.7

[14]	I therefore grant leave to appeal. I allow the appeal and remit the matter to the Auckland District Court, where I direct that a further hearing be scheduled to allow Mr France one further opportunity to advance his appeal.

[15]	I record that this morning I received a memorandum and (purported) interlocutory application from Mr France  in  reply  to  the  respondent’s  position. Mr France asked the matter to stay in the High Court “as it involves a tort”. After I delivered the above judgment Mr France repeated the request. I decline the request, which is misplaced. The only matter before this Court is Mr France’s appeal in a criminal proceeding. If Mr France wishes to pursue a tort or other civil claim, he must do so in a separate proceeding.

Campbell J

5	Spiers v New Zealand Police [2019] NZHC 641 at [7].
6	For examples, see Spiers v New Zealand Police [2019] NZHC 641, and the cases cited in [4] of that judgment.
7	This is so, whether or not s 338 (and therefore s 339(6)) applies.