Anderson v R

Case [2015] NZCA 518


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IN THE COURT OF APPEAL OF NEW ZEALAND

CA274/2015 [2015] NZCA 518

BETWEEN

LEE ANDERSON

Applicant

AND

THE QUEEN Respondent

Hearing: 5 August 2015

Court:

Ellen France P, French and Winkelmann JJ

Counsel:

K H Cook for Applicant
M J Lillico for Respondent
J B Orpin as Counsel assisting

Judgment:

9 November 2015 at 10 am

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France P)

Table of Contents

Para No

Introduction  [1] Factual background  [3] Does this Court have jurisdiction to hear an appeal relating to

the decision not to grant leave to change an election?  [12]

Should Woolford J’s decision be interpreted as a refusal of leave

to appeal?  [12]

Has there been a “determination” of the first appeal by the

High Court under s 303(1)?  [17]

ANDERSON v R [2015] NZCA 518 [9 November 2015]

The approach to s 296  [26] The statutory scheme  [27] The High Court decision  [35] Our assessment  [40]

Should leave be granted?  [59] The relevant provisions  [62] The approach in the Courts below  [65] Discussion  [68]

Decision  [73]

Introduction

[1]      Ms Anderson elected trial by judge alone but later applied to change her election to trial by jury.  In the North Shore District Court, Judge Burns declined her application on jurisdictional grounds, but observed that even if there had been jurisdiction,  the  appellant  had  not  shown  good  grounds  for  the  application.1

On appeal to the High Court, Woolford J found the High Court had no jurisdiction to hear her appeal and in any event would have upheld the decision of Judge Burns that grounds had not been made out to allow a change of election.2

[2]      Ms Anderson seeks leave to appeal the decision of Woolford J.  It is common ground that any appeal right she has is limited to an appeal on a question of law.3

Factual background

[3]      Ms Anderson faces one charge of assault with intent to injure under s 193 of the Crimes Act 1961.4   The incident relates to Ms Anderson’s former partner.  He has

pleaded guilty to charges of assaulting Ms Anderson.

1      Police  v  Anderson  DC  North  Shore  CRI-2014-44-1695, 8  December  2014  [District  Court judgment].

2      Anderson v Police [2015] NZHC 923, [2015] NZAR 999 [High Court judgment].

3      Mr Orpin was appointed as counsel assisting because of the unavailability of Ms Anderson’s

counsel, Mr Schellenberg, and the uncertainty, at that time, as to whether alternative counsel for Ms Anderson could be obtained:  Anderson v R CA274/2015, 14 July 2015 (Minute (No 2) and Directions of Wild J). Mr Cook was assigned late in the piece to appear for Ms Anderson.

4      This  is  a  category  three  offence  with  a  maximum  term  of  imprisonment  of  three  years.

The Criminal Procedure Act 2011 applies as the charging document was filed on 2 May 2014 after the commencement of the second stage of the Act…

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Anderson v R [2015] NZCA 518
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[2015] NZCA 518
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CaseChat Overview and Summary

In Anderson v R, the applicant sought leave to appeal the decision of the High Court to dismiss her appeal against the decision of the District Court to refuse her application to change her election from trial by judge alone to trial by jury. The Court of Appeal held that there was jurisdiction to hear an appeal under s 296 of the Criminal Procedure Act 2011 in relation to the decision not to grant leave to change an election. However, leave to appeal was refused as no broader issue of law arose in this case. The Court of Appeal held that the decision as to whether the trial is to be by a judge alone or by jury is one closely linked to disposition or determination. It decides the form of trial at which the determination will be made; in other words, who the decision-maker will be, a judge or a jury. The importance of the decision is reflected in s 24(e) of the New Zealand Bill of Rights Act 1990 preserving the right to the benefit of the trial by jury for offences punishable by two years imprisonment or more. The Court of Appeal declined to grant leave as no broader issues of law arose in this case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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