Bell v Police - [2023] NZCA 291

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA689/2022
[2023] NZCA 291

BETWEEN	SARAH BELL Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Cooper P, Moore, Fitzgerald JJ
Counsel:	Applicant in person H S Cunningham for Respondent
Judgment: (On the papers)	11 July 2023 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to appeal pursuant to s 339 of the Criminal Procedure Act 2011 is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Fitzgerald J)

Introduction

Following a Judge-alone trial before Judge Rollo in the District Court, Miss Bell was found guilty of two charges of harassment and one charge of resisting a constable acting in the execution of his duty (the verdicts decision).[1]
[1]Police v Bell [2021] NZDC 17810 [Verdicts decision].
The harassment charges arose out of Miss Bell using her personal email and false email addresses to send frequent, unsolicited and at times threatening and insulting emails and text messages to two police employees. The third charge arose out of the execution of a search warrant at Miss Bell’s residential address in July 2020.
At trial, Miss Bell denied having sent the relevant text messages and emails. Judge Rollo rejected Miss Bell’s evidence as untruthful and unreliable.[2] He found the charges proved beyond reasonable doubt.[3] Miss Bell was directed to come up for sentence if called upon and ordered to pay court costs and emotional harm reparations totalling $1,390.[4]
[2]At [124].
[3]At [149] and [157]–[158].
[4]Police v Bell [2021] NZDC 25059 [Sentencing notes] at [21]–[23].
Miss Bell appealed her convictions to the High Court. The hearing of the appeal was scheduled to take place on 14 December 2022, having been adjourned twice before to accommodate Miss Bell being unable to obtain legal representation and to ensure she had sufficient time to file written submissions in support of the appeal. Miss Bell was warned by the High Court on 17 October and again on 1 December 2022 that if submissions in support of the appeal were not filed in advance of the December hearing date, the appeal would be dismissed.
Miss Bell did not file written submissions in advance of the hearing date. Dunningham J accordingly dismissed the appeal for procedural non-compliance under s 338 of the Criminal Procedure Act 2011 (the Act).[5]
[5]Bell v R HC Dunedin CRI-2021-412-50, 14 December 2022.
Miss Bell wishes to appeal against Dunningham J’s decision to dismiss the appeal. Pursuant to s 339 of the Act, leave to appeal is required. The respondent confirmed that it opposed leave being granted but that it did not request a separate leave hearing. On 13 February 2023, Clifford J directed that the leave application be determined together with the proposed appeal, and that the matter be dealt with on the papers.

Procedural background

We set out below the procedural background in some detail because it provides important context to Dunningham J’s decision to dismiss the appeal, and to Miss Bell’s application for leave to appeal…

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 Bell v Police

Details

AGLC: Bell v Police [2023] NZCA 291
Case: [2023] NZCA 291
Decision Date: 11 July 2023 at 11.00 am

CaseChat Overview and Summary

Sarah Bell appeals the High Court's decision to dismiss her appeal against her convictions for two charges of harassment and one charge of resisting a constable. The Court of Appeal declines leave to appeal. The appeal against conviction was dismissed by Dunningham J after Bell failed to file written submissions in advance of the hearing, despite multiple warnings. Bell had also failed to file submissions before the appeal was first adjourned from June to October 2022, and again before it was adjourned from October to December 2022. The Court of Appeal finds that the three statutory requirements for dismissing an appeal under s 338 of the Criminal Procedure Act 2011 were met. Bell had failed to comply with procedural orders to file submissions, was given more than 10 working days' notice of the Court's intention to dismiss the appeal, and failed to remedy the procedural default. The Court of Appeal also finds that Dunningham J did not err in dismissing the appeal. Bell's ongoing failure to file submissions led to the abandonment of two substantive fixtures and it would have been unfair to require the respondent to participate in the appeal without clarity as to the grounds of Bell's appeal. The Court of Appeal further finds that there is no real merit to Bell's proposed appeal. The Court of Appeal finds it difficult to discern the basis upon which she says the Judge was wrong to reach the verdicts he did. The Court of Appeal is hesitant to interfere with a trial judge's assessment of credibility and the Judge accepted the prosecution's expert evidence as to the authorship of the emails.

Orders