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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].
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Anderson v R [2015] NZCA 518
Case
[2015] NZCA 518
Decision Date
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.