Churchis v The King - [2024] NZCA 262

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA391/2015
[2024] NZCA 262

BETWEEN	STEVEN RAY CHURCHIS Appellant
AND	THE KING Respondent

CA455/2016
BETWEEN	TYSON-TAINUI RUKUWAI TE TOMO Appellant
AND	THE KING Respondent

Court:	Goddard and Cooke JJ
Counsel:	S K Green for Appellants C A Brook for Respondent
Judgment: (On the papers)	24 June 2024 at 10.30 am

JUDGMENT OF THE COURT

AThe application for a joint oral hearing of the appeals is declined.
BWe make the directions set out at [19] and [20] of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooke J)

By memorandum dated 25 March 2024 the appellants in these appeals seek directions that their substantive appeals and associated applications be dealt with together at an oral hearing.
Mr Churchis has filed an application to withdraw a notice of abandonment of his sentence appeal that was filed in 2016. He also seeks a direction that his former counsel, Mr Pyke, not be required to file evidence in relation to that application. In addition, he applies under r 23(2) of the Court of Appeal (Criminal) Rules 2001 (the Rules) to review an earlier decision of Collins J that this application be dealt with separately on the papers. He seeks a direction that there be an oral hearing in accordance with s 329 of the Criminal Procedure Act 2011.
There are no such additional directions sought in relation to Mr Te Tomo’s appeal. He filed an appeal against sentence in 2016 which has not been determined or abandoned. He accordingly does not need leave to withdraw any notice of abandonment, and neither is there an existing decision that his appeal be determined without an oral hearing. His application is limited to an application that his appeal be heard together with that of Mr Churchis. Ms Green acts for both appellants.
The respondent opposes the applications made by Mr Churchis. It is argued that the notice of abandonment should be dealt with separately on the papers, and that it will be necessary for Mr Pyke to give evidence to explain the abandonment. In the case of Mr Te Tomo, the respondent argues the position is more straightforward as an undetermined notice of appeal against sentence exists. The respondent accepts that Mr Te Tomo is entitled to an oral hearing of this appeal and that it should be set down at the earliest convenience. The respondent abides the decision of the Court in relation to the scheduling of the appeals but contends that Mr Churchis’ leave application should be heard and determined first.

Relevant background

Mr Churchis was found guilty of murder following a jury trial in 2014. He was 17 years of age at the time of the offending. On 17 September 2014, he was sentenced to life imprisonment with a minimum period of imprisonment of 11 years and six months.[1] On 17 July 2015, he filed an appeal against both conviction and sentence. This was nine months out of time…

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 Churchis v The King

Details

AGLC: Churchis v The King [2024] NZCA 262
Case: [2024] NZCA 262
Decision Date: 24 June 2024 at 10.30 am

CaseChat Overview and Summary

In the case of Churchis v The King, the Court of Appeal of New Zealand dealt with applications from two appellants, Steven Ray Churchis and Tyson-Tainui Rukuwai Te Tomo, who sought to appeal their criminal sentences. The Court declined a joint oral hearing for the appeals and issued specific directions for the handling of each appellant's case. Churchis sought to withdraw a notice of abandonment of his sentence appeal and have his former counsel, Mr Pyke, exempt from providing evidence. Te Tomo sought to have his sentence appeal heard together with Churchis' appeal. The Crown opposed the applications, arguing that Churchis' application should be dealt with on the papers and that Te Tomo's appeal should proceed as scheduled.

The court's reasoning focused on the principle of finality in criminal proceedings and the strength of the merits in each case. The Court found that Churchis' application to withdraw the notice of abandonment, filed over seven years after the original sentence, was unlikely to succeed and required separate consideration on the papers. Evidence, potentially including from Mr Pyke, would be necessary to explain the circumstances of the abandonment and any proposed fresh evidence. The Court also concluded that Te Tomo's appeal, which had not been abandoned, should proceed as scheduled, with an option for a joint hearing if desired. The Court provided detailed directions for the filing of evidence and submissions for both appellants, ensuring a structured approach to their respective appeals.

In summary, the Court declined the joint oral hearing application and issued specific procedural directions for each appellant. Churchis' application to withdraw the notice of abandonment was to be dealt with separately on the papers, with a requirement for evidence and potential waiver of privilege. Te Tomo's appeal was to proceed as scheduled, with the option for a joint hearing if both appellants wished it.

Orders