Mitchell v Police [2020] NZHC 1773 (18 July 2018)

Last Updated: 17 July 2020

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

CRI-2018-404-159 [2018] NZHC 1773

BETWEEN	GORDON MITCHELL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	18 July 2018
Appearances:	G Harvey for Appellant C Juneja for Respondent
Judgment:	18 July 2018

JUDGMENT OF LANG J

[on appeal against pre-trial ruling]

This judgment was delivered by me on 18 July 2018 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

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

MITCHELL v NEW ZEALAND POLICE [2018] NZHC 1773 [18 July 2018]

• [1] Mr Mitchell faces four charges of breaching a restraining order. The charges are laid under s 245(1) of the Harassment Act 1997 (the Act). In an oral judgment delivered on 17 April 2018, Judge Manuel dismissed an application by Mr Mitchell for the charges to be dismissed under s 147 of the Criminal Procedure Act 2011 (the CPA).¹ Mr Mitchell’s appeal against that decision is scheduled to be heard on Monday 23 July 2018 at 10 am.

• [2] Counsel for the respondent has challenged the jurisdiction of this Court to hear the appeal under s 296 of the CPA. To address that issue, I held a telephone conference with counsel today. At the conclusion of the conference I advised counsel I would be striking the appeal out on the basis that this Court has no jurisdiction to hear it. I now make that order, and give my reasons for doing so.

Jurisdiction

• [3] This Court has appellate jurisdiction in relation to pre-trial rulings made in the District Court under ss 217 and 296 of the CPA. Under s 217, the Court has jurisdiction to hear appeals by either the prosecution or defendant against pre-trial decisions made in Category 3 cases after the defendant has elected trial by jury. That section has no application in the present case because it is a Category 2 proceeding in which Mr Mitchell has elected to be tried by a Judge sitting without a jury.

• [4] Section 296 of the CPA relevantly provides:

296 Right of appeal

(1) This section applies if a person has been charged with an offence.

(2) The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3) The question of law in a first appeal under this subpart must arise—

(a) in proceedings that relate to or follow the determination of the charge; or

(b) in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

¹ New Zealand Police v Manuel [2018] NZDC 10341.

...

• [5] As the wording of s 296(3) makes clear, any question of law to be determined under s 296 must arise in proceedings relating to or following the determination of a charge, or in relation to the determination of the charge.

• [6] In Clarke v New Zealand Police, Collins J held that s 296 does not permit a defendant to challenge a decision to declining an application for discharge under s 147 of the CPA.² Collins J observed:

[22] The plain intention of s 296 of the Act is that appeals on questions of law may be pursued where applications under s 147 of the Act have been granted, that is to say, when a charge has been determined under s 147 of the Act. There is not, however, jurisdiction to appeal a decision declining an application under s 147 of the Act, because such decisions do not determine a charge. This mirrors the position that applied before the passing of the Act. There was no jurisdiction to appeal a decision declining an application under s 347 of the Crimes Act 1961.

• [7] The approach taken by Collins J in Clarke mirrors that taken by the Court of Appeal in D v R.³ In that case the Court of Appeal held there was no jurisdiction for the Court to hear an appeal against a ruling declining to discharge a defendant in the Youth Court under s 322 of the Children, Young Persons, and Their Families Act 1989.

Similarly, in Anderson v R, the Court of Appeal observed:⁴

[46] It is important that the appeal rights under s 296 are not the only remedy. If, for example, there is a decision not to dismiss a charge under s 147 of the Act, that can be remedied after the trial by an appeal against conviction on the basis there has been a miscarriage of justice. For other decisions, for example, the decision not to adjourn a trial, remedies such as judicial review may be available. The ability to remedy any error after trial is relevant in construing the scope of s 296.

Decision

• [8] I consider the position in the present case to be clear. As Clarke demonstrates, a decision declining to discharge a defendant under s 147 of the CPA is not amenable to appeal in this Court under s 296. Instead, the matter must proceed to trial in the District Court. If the trial results in conviction, Mr Mitchell can file an appeal against

² Clarke v New Zealand Police [2015] NZHC 259.

³ D v R [2016] NZCA 190.

⁴ Anderson v R [2015] NZCA 518.

conviction incorporating, if appropriate, the argument that did not find favour with Judge Manuel. The Court has no jurisdiction to hear the present appeal and it is struck out for that reason.





Lang J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland