Clark v The Queen - [2005] NZSC 23

IN THE SUPREME COURT OF NEW ZEALAND

SC CRI 20/2004 [2005] NZSC 23

THOMAS MAXWELL CLARK

v

THE QUEEN

Hearing: 6 April 2005
Court: Elias CJ, Gault, Keith, Blanchard and Tipping JJ Counsel: C B Cato and A J Guest for Applicant
N M Crutchley for Respondent

Judgment: 10 May 2005

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS
(Given by Elias CJ)

The issue

[1] The short point for determination is whether the Supreme Court can give leave to hear a second appeal from a pre-trial ruling as to the admissibility of evidence at trial. Pre-trial appeal is provided for under s 379A of the Crimes Act
1961 “in certain cases”. As relevant to the present application, concerned with the

appeal of orders for admission of evidence at trial under s 344A, s 379A provides:

CLARK V R SC CRI 20/2004 [10 May 2005]

379A Right of appeal in certain cases

(1) At any time before the trial … either the prosecutor or the accused person, with the leave of the court appealed to, may appeal to the Court of Appeal or the Supreme Court against any of the following orders …, namely,

…

(aa) Against the making of an order under section 344A of this Act, or against the refusal of a Judge to make such an order….

The words italicised were inserted by Part 2 of Schedule 1 of the Supreme Court Act

2003. Until enactment of the Supreme Court Act, s 379A permitted pre-trial appeals only to the Court of Appeal. Counsel referred to the fact that, at least on one occasion,1 a petition for special leave to appeal a pre-trial ruling was considered by the Judicial Committee of the Privy Council But such petition was to the Queen under the general provisions of s 3 of the Judicial Committee Act 1833.2 It was not a right of appeal. The advice of the Privy Council on such petitions is taken by the monarch and does not rest on any statutory appeal entitlement. The Supreme Court has no equivalent advisory role. Its jurisdiction is wholly statutory. The question raised by the present application is whether s 379A, as now amended, permits two consecutive appeals (to the Court of Appeal and then to the Supreme Court) or only one appeal (either to the Court of Appeal or to the Supreme Court).

[2] Leave of the Supreme Court is required for all appeals to the Court.3

Section 12(2) of the Supreme Court Act provides:

(2) References in enactments other than this Act to the leave of the
Supreme Court must be read subject to sections 13 and 14.

It is therefore clear that any appeal to the Supreme Court permitted by s 379A must satisfy the leave criteria under s 13 and one that is a direct appeal from a court other than the Court of Appeal will be granted leave under s 14 only if the Supreme Court is “satisfied that there are…

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 Clark v The Queen

Details

AGLC: Clark v The Queen [2005] NZSC 23
Case: [2005] NZSC 23
Decision Date: 10 May 2005

CaseChat Overview and Summary

The Supreme Court of New Zealand dismissed an application for leave to appeal a pre-trial ruling regarding the admissibility of evidence. Thomas Maxwell Clark, the applicant, sought leave to appeal to the Supreme Court against a decision of the Court of Appeal upholding a District Court ruling. The Court of Appeal had already granted leave for Clark to appeal certain pre-trial rulings. The legal issue before the Supreme Court was whether it had the jurisdiction to entertain a second appeal from a pre-trial ruling under section 379A of the Crimes Act 1961.

The Court held that section 379A, as amended by the Supreme Court Act 2003, allows only one appeal from a pre-trial ruling, either to the Court of Appeal or to the Supreme Court. The Court noted that the statutory scheme permits a "leap-frog" appeal directly to the Supreme Court in exceptional circumstances but does not provide for consecutive appeals. The Court rejected arguments that the statutory scheme should be interpreted to allow a second appeal following a Court of Appeal determination, as this would render other provisions in the Crimes Act and other statutes unnecessary. The Court concluded that the statutory scheme was carefully constructed and that the Supreme Court did not have jurisdiction to grant leave for a second appeal from a pre-trial ruling of the Court of Appeal.

The Supreme Court therefore dismissed the application for leave to appeal, holding that it did not have the jurisdiction to entertain the second appeal under section 379A. The Court emphasized that the statutory scheme provides for one appeal only from a pre-trial ruling, either to the Court of Appeal or to the Supreme Court in exceptional circumstances. The Court rejected arguments that the statutory scheme should be interpreted to allow consecutive appeals, which would render other provisions in the Crimes Act and other statutes unnecessary. The Court concluded that the Supreme Court did not have jurisdiction to grant leave for a second appeal from a pre-trial ruling of the Court of Appeal.

Orders