Mathers v Police [2018] NZHC 1408 (13 June 2018)

Last Updated: 4 February 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-190 [2018] NZHC 1408

BETWEEN	ZOE MATHERS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	13 June 2018
Appearances:	L Smith (on behalf of A S Bloem) for Appellant R McCoubrey for Respondent
Judgment:	13 June 2018

JUDGMENT OF LANG J

[on application for appeal against conviction to be heard prior to sentencing of appellant]

This judgment was delivered by me on 13 June 2018 at 4.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date...............

MATHERS v NEW ZEALAND POLICE [2018] NZHC 1408 [13 June 2018]

[1] Following a Judge alone trial in the District Court Ms Mathers was convicted on two charges of burglary in a decision delivered by Judge Manuel on 17 May 2018. The Judge remanded Ms Mathers on bail for sentence on 20 July 2018.

[2] Ms Mathers has now filed an appeal against conviction. She asks this Court to hear the appeal against conviction before she is sentenced in the District Court.

Background

[3] The burglary charges related to two occasions during April 2017 on which Ms Mathers is alleged to have entered her parents’ home and stolen items. The prosecution alleged that at some stage between 14 and 24 April 2017 Ms Mathers entered her parents’ home and stole a car key, an Apple iPhone and a Samsung cellphone. Then, on 27 April 2017, she is alleged to have returned to her parents’ home and stolen a cheque book, an iPad and $10,000 in cash.

[4] Neither the notes of evidence from the hearing in the District Court nor the Judge’s decision are available at this stage. The present application arises out of the prosecution’s allegation that Ms Mathers stole the sum of $10,000 in cash from her parents’ home when she entered the address on 27 April 2017.

[5] As counsel for Ms Mathers explains the situation, the evidence at the hearing was to the effect that Ms Mathers’ parents had hidden $10,000 in cash under the mattress of their bed. When they checked under the mattress after they returned home on or shortly after 27 April 2017, however, the cash was missing.

[6] It now transpires that Ms Mathers’ parents have found the cash. It was apparently hidden under the mattress but in the middle of the bed. They believed it was missing when they laid their complaint with the police because they had not made a full check of the area under the mattress.

Jurisdiction

[7] Section 231 of the Criminal Procedure Act 2011 (the Act) provides as follows:

231 How to commence first appeal

(1) A convicted person commences a first appeal under this subpart by filing in the first appeal court—

(a) a notice of appeal, if the court appealed to is the District Court,

High Court, or Court of Appeal; or

(b) a notice of application for leave to appeal, if the court appealed to is the Supreme Court.

(2) A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of sentence for the conviction appealed against.

(3) The first appeal court may, at any time, extend the time allowed for filing a notice of appeal or notice of application for leave to appeal.

[8] The section plainly contemplates that sentencing will take place before a notice of appeal against conviction is filed. There is, however, no express provision requiring sentencing to take place before the appeal against conviction may be filed. This is to be contrasted with the section that s 231 replaced, s 115(3) of the Summary Proceedings Act 1957. This provided:

115 Defendant’s general right of appeal to High Court

...

(3) No appeal against conviction shall be brought until the person convicted has been sentenced or otherwise dealt with.

[9] I consider the change in wording was deliberate. Parliament obviously intended that most appeals against conviction should be heard after the appellant had been sentenced. This removes the risk that the first appeal court will be required to hear two appeals, one against conviction and one against sentence. Parliament recognised, however, that there may be cases in which it is appropriate for an appeal against conviction to be heard before the appellant has been sentenced. Those cases are likely to be the exception rather than the rule.
[10] The situation that arose in Gurney v Police provides a good illustration of when it will be appropriate to determine an appeal against conviction before the appellant has been sentenced.¹ In that case the appellant had been convicted in 2017 of driving with excess breath alcohol in 2002. The delay in hearing the charge had occurred principally because the appellant went overseas after pleading not guilty but before the defended hearing could take place. A warrant was then issued for his arrest, but this was not executed when he returned to New Zealand. The charge therefore remained in limbo until 2016. The appellant then defended the charge, but was convicted after a defended hearing. He appealed against conviction and asked this Court to determine the appeal before he was sentenced in the District Court.

[11] Collins J observed that it was “highly unusual” for an appeal against conviction to be heard before sentencing had taken place, but he noted that s 231 did not expressly require sentencing to take place prior to consideration of an appeal.² He considered it appropriate to determine the appeal. The delay between 2002 and 2017 meant that the prosecution in the District Court could not continue without the prior consent of the Attorney-General.³ It was common ground that the Attorney-General had not given his consent to the continuation of the prosecution. It followed that the District Court had no jurisdiction to hear the charge, and equally had no jurisdiction to impose sentence. In those circumstances it would obviously have been pointless, and wrong in principle, to require the appellant to be sentenced before the appeal against conviction was heard.

Decision

[12] The difficulty that arises in the present case is that Ms Mathers was not charged with the theft of the money that has now been found. Rather, she was charged with burglary. Burglary is committed where the defendant breaks and enters a property with intent to commit a crime therein.⁴ The prosecution alleged that Ms Mathers entered her parents’ address on 27 April 2017 with the intent of stealing items from it.

¹ Gurney v New Zealand Police [2017] NZHC 1581.

² Gurney v New Zealand Police, above n 1, at [11].

³ Crimes Act 1961, s 10B (now repealed).

⁴ Crimes Act 1961, s 231(a).

It no doubt asked the Court to infer that her intent was demonstrated by the fact that she took a cheque book, an iPad and the cash.

[13] The fact that the cash has now been found does not, however, mean that Ms Mathers has an unanswerable defence to the second burglary charge. A conviction could still be entered on that charge provided the Court was satisfied beyond reasonable doubt that Ms Mathers intended to steal property when she entered the property. If the Court remained satisfied she took the cheque book and iPad, this would provide evidence of an intent to steal. Furthermore, Ms Mathers has also been convicted on the other charge of burglary, and as matters presently stand the finding of the cash does not affect that charge.

[14] I have therefore concluded it would not be appropriate in the circumstances of the present case to direct the appeal against conviction to be heard before Ms Mathers is sentenced.

[15] It is open to the parties to ask the Judge to sentence Ms Mathers on the basis that she was not responsible for stealing the cash. If Ms Mathers remains dissatisfied with that outcome, she can then continue with her appeal against conviction.

[16] Counsel advise me that Ms Mathers has now spent approximately five months in custody on these charges and another eight months on electronically monitored bail. If the Judge imposes a custodial sentence on these charges Ms Mathers can seek bail from the District Court pending the appeal against conviction being heard by this Court.⁵

Result: directions

[17] The appeal against conviction is to be heard after Ms Mathers has been sentenced in the District Court on 20 July 2018.

[18] I direct that the Registrar is to obtain a transcript of both the evidence given at the hearing in the District Court and the Judge’s decision.

⁵ Bail Act 2000, s 54(2).

Next event

[19] The appeal is to be listed for mention in the criminal appeals callover at 9 am on Friday 27 July 2018. If Ms Mathers wishes to continue with the appeal at that point a fixture will be allocated on 6 August 2018 at 10 am (one and a half hours allocated).




Lang J

Solicitors:

Crown Solicitor, Auckland