C (SC 22/2022) v The the Queen - [2022] NZSC 82

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: DISTRICT COURT ORDER [2016] NZDC 20286 PROHIBITING PUBLICATION OF THE APPLICANT’S NAME REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 22/2022
[2022] NZSC 82

BETWEEN	C (SC 22/2022) Applicant
AND	THE QUEEN Respondent

Court:	O’Regan, Ellen France and Kós JJ
Counsel:	Applicant in person R K Thomson for Respondent
Judgment:	1 July 2022

JUDGMENT OF THE COURT

The application for an extension of time to apply for leave
to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted after a jury trial on four charges of sexual offending against his step‑daughter and one representative charge of supplying her with cannabis. The charges related to events between 2010 and 2015. The applicant was sentenced to a term of imprisonment of four years, with a minimum period of imprisonment of two years.[1] The sentencing took place on 12 October 2016.

Court of Appeal decision

[1]R v [C] [2016] NZDC 20286 at [34]–[38].

On 17 November 2020, the applicant filed a notice of appeal against conviction in the Court of Appeal. The notice of appeal was approximately four years out of time so the applicant required an extension of time for filing an appeal under s 231(3) of the Criminal Procedure Act 2011. The Court of Appeal declined his application for an extension of time.[2] On 2 February 2022, the applicant applied to the Court of Appeal for recall of its judgment, but this application was dismissed.[3]

Application for leave to appeal against Court of Appeal decision

[2]C (CA667/2020) v R [2021] NZCA 271 (Goddard, Venning and Peters JJ) [CA judgment].

[3]C (CA667/2020) v R [2022] NZCA 182.

The applicant now seeks leave to appeal against the decision of the Court of Appeal declining the extension of time to appeal to that Court. That application must fail, because this Court does not have jurisdiction to hear and determine an appeal against a decision of the Court of Appeal declining to extend time for the filing of a notice of a criminal appeal. That is because this Court’s jurisdiction in relation to a second appeal in a criminal matter is limited to an appeal against the determination of the first appeal.[4] In this case, there was no first appeal because the Court of Appeal declined to grant an extension of time for that appeal to be commenced.

Leapfrog application

[4]Criminal Procedure Act 2011, s 237(1); and Nottingham v Taka [2018] NZSC 102, [2018] NZAR 1759 at [9].

The fact that the Court of Appeal declined the applicant’s application for an extension of time to appeal to that Court does not preclude the…

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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Details

Case: [2022] NZSC 82
Decision Date: 1 July 2022

CaseChat Overview and Summary

The case before the Supreme Court of New Zealand involved the applicant, referred to as C, who sought an extension of time to apply for leave to appeal against the Court of Appeal's decision that declined his request for an extension of time to appeal against his conviction. The conviction related to sexual offending against his step-daughter and supplying her with cannabis, with the sentencing taking place on 12 October 2016. The applicant filed a notice of appeal against conviction on 17 November 2020, which was four years out of time. The Court of Appeal subsequently dismissed the applicant's application for an extension of time and his application for recall of its judgment.

The primary legal issue that the Supreme Court was required to decide was whether it had the jurisdiction to hear and determine an appeal against the Court of Appeal's decision declining the extension of time for the filing of a criminal appeal. Additionally, the Court had to consider whether the applicant's proposed grounds of appeal involved a matter of general or public importance, a substantial miscarriage of justice, or a matter of general commercial significance, as required by ss 74 and 75 of the Senior Courts Act 2016. The Court also had to examine if there were exceptional circumstances justifying a leapfrog appeal to the Supreme Court.

The Supreme Court held that it did not have jurisdiction to hear and determine an appeal against a decision of the Court of Appeal declining to extend time for the filing of a criminal appeal, as the Court's jurisdiction in relation to a second appeal in a criminal matter is limited to an appeal against the determination of the first appeal. In this case, there was no first appeal because the Court of Appeal declined to grant an extension of time for that appeal to be commenced. The Court further determined that the proposed grounds of appeal raised by the applicant did not involve a matter of public importance, commercial significance, or a substantial miscarriage of justice. Therefore, the application for an extension of time to apply for leave to appeal was dismissed.

The Supreme Court of New Zealand dismissed the applicant's application for an extension of time to apply for leave to appeal against the Court of Appeal's decision declining the extension of time for the filing of a criminal appeal.

Orders