Angus v The Queen - [2019] NZCA 396

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA190/2019
[2019] NZCA 396

BETWEEN	MELISSA JANE ANGUS Applicant
AND	THE QUEEN Respondent

Hearing:	20 August 2019
Court:	French, Collins and Stevens JJ
Counsel:	F E Geiringer and J K Mahuta-Coyle for Applicant C A Brook for Respondent
Judgment:	20 August 2019 at 2.30 pm
Reasons:	29 August 2019

JUDGMENT OF THE COURT

The application to extend the time for filing an appeal is declined for want of jurisdiction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

The applicant, Mrs Angus, wishes to appeal against 13 convictions entered against her in the District Court of being a party to theft by a person in a special relationship and/or by failing to account.[1] There is no appeal against sentence.
[1]Crimes Act 1961, ss 220, 222 and 223.
The appeal is advanced on the grounds that the District Court, in a pre‑trial ruling, erred in law by declining to grant a stay of the prosecution as the necessary remedy having found a breach of Mrs Angus’s right to trial without undue delay.[2]
[2]R v Angus [2017] NZDC 8675 at [42].
Following receipt of the above pre-trial ruling, Mrs Angus sought, and was granted, leave to withdraw the election she had previously made for trial by jury. The change of election occurred on 2 June 2017 when Mrs Angus opted in favour of a judge alone trial. Subsequently, the week before her trial was due to commence, Mrs Angus received a sentence indication. Thereupon Mrs Angus entered guilty pleas and was sentenced in the District Court to six months’ home detention with $10,000 reparation to be paid at $100 per week.[3]
[3]R v Angus [2019] NZDC 1245 at [14].
The circumstances of this case give rise to a question whether the appeal Mrs Angus wishes to advance should be filed in the High Court rather than in this Court. This turns on the appropriate appeal pathways as set out in the applicable provisions of the Criminal Procedure Act 2011 (the CPA) as amended by the Courts Matters Act 2018 (the CMA). This issue came before us as a discrete question of jurisdiction, separate from the substance of the appeal.
We have concluded that the appeal should have been filed in the High Court. This Court lacks jurisdiction to determine the appeal, given the procedural course adopted when the case was before the District Court.
When the application was heard on 20 August 2019 we were able to issue a results judgment with reasons to follow. These are our reasons.

Factual background

Mr and Mrs Angus ran a funeral business, Omega Funeral Services and Memorials (Omega), from 1998 until 2005 in Wainuiomata. One of the services offered was pre-paid funerals. Between 28 May 1998 and 9 August 2004 Mr and Mrs Angus received $93,259 from various people for pre-paid funeral services, on the basis that the funds would be held in a trust account and could…

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.

Continue reading Angus v The Queen

Details

AGLC: Angus v The Queen [2019] NZCA 396
Case: [2019] NZCA 396
Decision Date: 20 August 2019 at 2.30 pm

CaseChat Overview and Summary

Melissa Jane Angus sought leave to appeal against her convictions entered in the District Court to this Court. The appeal was filed after the relevant time limit had expired. The appeal is against 13 convictions of being a party to theft by a person in a special relationship and/or by failing to account. The central issue for determination was whether this Court had jurisdiction to hear the appeal, given the procedural history of the case.

The Court held that the appeal should have been filed in the High Court, rather than this Court. This conclusion was reached by examining the relevant provisions of the Criminal Procedure Act 2011 (CPA) and the Courts Matters Act 2018 (CMA). The Court noted that the CMA had amended the CPA by providing that a withdrawn election should be treated as never having been made, except where an appeal has already been filed prior to the election being withdrawn. The Court also noted that the CMA amendments apply to appeals filed on or after 14 November 2018, the date the CMA came into force. Since the appeal in this case was filed on 1 May 2019, the CMA amendments applied.

The Court concluded that the amendments applied to the present appeal, notwithstanding the fact that the election was withdrawn on 2 June 2017, well prior to the 14 November 2018 commencement date. The Court held that the amendments are purely procedural and do not have any substantive effect on the applicant’s right of appeal against conviction. The Court found no legal or policy reason why the amendments should not apply.

The Court held that this Court has no jurisdiction to deal with the appeal. The High Court is the correct first appeal court pursuant to s 230 of the CPA. The application to extend the time for filing an appeal is declined for want of jurisdiction.

Orders