BETWEEN ELIZABETH JANE COONEY Appellant AND NEW ZEALAND POLICE Respondent

[2024] NZHC 2562

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000301

[2024] NZHC 2562

BETWEEN

ELIZABETH JANE COONEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	20 August 2024
Counsel:	MI Hague for Appellant FE Cleary for Respondent
Judgment:	9 September 2024

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 9 September 2024 at 12 pm.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Manukau. Frontline Law, Wellington.

COONEY v POLICE [2024] NZHC 2562 [9 September 2024]

The issue

[1]    Elizabeth Cooney, who is also known as Liz Gunn, was found guilty of assault following a Judge-alone trial in the District Court.1 Ms Cooney wishes to appeal that finding but is yet to be sentenced. By Minute of 20 August 2024, I invited submissions on whether this court has jurisdiction to hear (and determine) the appeal. Importantly, no conviction has been entered by the District Court.

Background

[2]    On 25  February  2023,  Ms  Cooney  and  a  co-defendant  were  at  Auckland International Airport. Ms Cooney had a microphone, her co-defendant a large video camera. Ms Cooney and the co-defendant interviewed a group of people in the arrival area, capturing the sequence on their equipment. Their behaviour attracted attention.

[3]    Anna Kolodeznaya is a security co-ordinator at the airport. Ms Kolodeznaya approached  the  defendants  and  asked  if  they  had  permission  to  film  there.   Ms Cooney’s subsequent interaction with both Ms Kolodeznaya and Police resulted in charges of assault, trespass, and resisting Police.

[4]    Judge J Forrest dismissed the trespass and resisting (Police) charges. However, the Judge found Ms Cooney guilty of assaulting Ms Kolodeznaya by deliberately touching her without her consent.2

[5]    Ms Cooney has applied to be discharged without conviction. As observed, she is yet to be sentenced. No conviction has been entered by the District Court in relation to the assault.

1      Police v Cooney [2024] NZDC 10363.

2 At [25].

Is there jurisdiction for the appeal?

[6]    An appeal is a creature of statute. So, a statutory provision enabling an appeal must exist for a Court to hear and determine an appeal. On behalf of  Ms Cooney,  Mr Hague cites three possible candidates:

(a)Section 124(2) of the District Court Act 2016.

(b)Section 296 of the Criminal Procedure Act 2011.

(c)Section 229 of the Criminal Procedure Act.

[7]    Section 124(2) of the District Court Act is an awkward choice because it sits in a part of that Act directed at civil proceedings, and s 73 of the same Act provides the  criminal   jurisdiction   of   the   District   Court   is   conferred   by   the Criminal Procedure Act.3 An appeal in that jurisdiction would, logically, be under that Act. Furthermore, as the Criminal Procedure Act contains “carefully crafted appeal rights”,4 to conclude s 124(2) founds jurisdiction would vitiate the scheme containing those rights.

[8]    Section 296 of the Criminal Procedure Act provides for an appeal on a question of law (provided the appeal Court grants leave for the appeal). A question of law must raise one of more of the following:5

(a)a misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);

(b)oversight of a relevant matter, or consideration of an irrelevant mater; or

(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.

[9]    Ms Cooney’s primary challenge concerns the Judge’s determination in relation to her alleged belief in consent: Ms Cooney testified that she believed the complainant

3      Or any other enactment.

4      Angus v District Court at Wellington [2017] NZHC 2879, [2018] NZAR 1804 at [29].

5      Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16] (footnotes omitted).

consented to her touching  her,  but  the  Judge  rejected  Ms  Cooney’s  evidence.  Ms Cooney does not argue the Judge’s determination was unsupported by any evidence, hence that a question of law arises in terms of [8(c)]. Rather, Ms Cooney argues the evidence did not warrant an adverse determination in relation to a belief in consent. The point is intensely factual. Relatedly, the law in this area is settled: the prosecution had “to negative” a claimed belief in consent.6 It follows Ms Cooney has not identified any question of law, and none arises.

[10]   Finally, Ms Cooney argues the appeal should be treated as an appeal against conviction under s 229 of the Criminal Procedure Act. The fundamental problem with this contention is that the Criminal Procedure Act draws a distinction between a plea or finding of guilt and a conviction. For example, s 114 of that Act provides when a defendant pleads guilty or is found guilty, the Court may “convict” the defendant. Similarly, s 376 of the Act provides if a Court sentences a defendant, they are “deemed to be convicted”. Under s 115 of the Act, a guilty plea may be withdrawn with the permission of the Court, but if a conviction has been entered, the defendant must appeal that conviction under s 229. This in turn explains the rich vein of conviction- appeal case law following the entry of a guilty plea.7

[11]   This conclusion is consistent with van der Haven v New Zealand Customs Service,  in  which  Osborne   J   held   the   term   “conviction”   within   the Criminal Procedure Act referred to a formal conviction.8

[12]   Mr Hague contends jurisdiction “must exist”, otherwise Ms Cooney would not be able to appeal the finding of guilt if she were discharged without conviction. There are  two  answers  to  this  contention.  First,  and  as  observed  already,   the Criminal Procedure Act contains “carefully crafted appeal rights”.9 Its scheme must be respected. Second, s 25(h) of the New Zealand Bill of Rights Act 1990 does not recognise a right to appeal a determination of guilt. Rather, it provides everyone has the right, “if convicted of the offence, to appeal according to law to a higher court

6      See R v Nazif [1987] 2 NZLR 122 (CA) at 128.

7      See Mathew Downs (ed) Adams on Criminal Law  –  Criminal  Procedure  (online  ed,  Thomson Reuters) at [CPA232.14].

8      van der Haven v New Zealand Customs Service [2022] NZHC 670 at [41].

9      Angus v District Court at Wellington [2017] NZHC 2879, [2018] NZAR 1804 at [29].

against the conviction or against the sentence or against both”. Under our system of criminal justice, it is a conviction that carries jeopardy and stigma. Therein lies the importance of the Courts’ ability to discharge a defendant without conviction should the consequences “of a conviction … be out of all proportion to the gravity of the offence”.10 Ms Cooney’s application in the District Court for such relief, of course, remains live.

Result

[13]The appeal is dismissed for lack of jurisdiction.

……………………………..

Downs J

10     Sentencing Act 2002, s 107 (emphasis added).