Clifton v The Queen

[2005] NZCA 39

IN THE COURT OF APPEAL OF NEW ZEALAND

CA398/03

THE QUEEN

v

CHRISTIAN PAUL CLIFTON

Hearing:9 March 2005

Court:Anderson P, Heath and Doogue JJ

Counsel:P F Chambers for Appellant

H D M Lawry for Crown

Judgment:9 March 2005 

JUDGMENT OF THE COURT

The motion in arrest of judgment is dismissed. 

REASONS

(Given by Anderson P)

[1]       Mr Clifton is one of three people who were convicted in the District Court before Judge Field and a jury on charges relating to the importation and manufacture of the Class B drugs amphetamine and methamphetamine.  Sentences amounting to eight years and three months in total were imposed by the District Court on the appellant.  He appealed to this Court which, on 8 November 2004, delivered a fully reasoned judgment dismissing the appeal against conviction but allowing the appeal against sentence.

[2]       Mr Clifton then applied to the Supreme Court for leave to appeal.  That application was dismissed.  In the meantime he had filed an interlocutory application in this Court, said to be a motion in arrest of judgment. 

[3]       Section 371 of the Crimes Act makes provision for such a motion in a trial court.  The section in full provides:

371     Motion in arrest of judgment. Sentence

(1)     If the jury find the accused guilty, or if the accused pleads guilty, it shall be the duty of the Registrar to ask him whether he has anything to say why sentence should not be passed upon him according to law; but the omission so to ask shall have no effect on the validity of the proceedings.

(2)   The accused may, at any time before sentence, move in arrest of judgment on the ground that the indictment does not (after any amendment has been made therein that the Court is willing and has power to make) state any crime.

(3)     The Court may in its discretion either hear and determine the matter during the same sitting, or reserve the matter for the Court of Appeal.

(4)     If the Court decides in favour of the accused he shall be discharged from that indictment.

(5)     If no such motion is made, or if the Court decides against the accused on any such motion, the Court may, during the sitting of the Court, sentence the accused or deal with him in any other manner authorised by law.

(6)    If the accused is not sentenced or dealt with during the sitting, section 65 of the Bail Act 2000 applies.

(7)     In any such case, any Judge of the Court may, at a subsequent sitting, sentence the accused or deal with the accused in any other manner authorised by law.

[4]       In support of the application Mr Chambers has filed extensive submissions challenging the correctness of this Court’s decision of 8 November 2004, and taking issue with the legality of the indictment in the trial court.  When the matter was brought to my attention in the course of routine administration in my capacity as President, I brought to counsel’s notice the issue of jurisdiction because it seemed perfectly plain in terms of s 371 that an order in arrest of judgment could be made only before sentence was entered.  Mr Chambers has sought to persuade this Court that the section read as a whole with a rights based emphasis pursuant to ss 24 and 25 of the New Zealand Bill of Rights Act admits the possibility of this Court entertaining such a motion and, by implication, a trial court entertaining such a motion even after sentence, that is, after judgment has been entered.

[5]       The proposition that a judgment may be arrested after it has been entered is quite untenable.  This application is entirely without merit for want of jurisdiction.  Mr Clifton’s remedy, if there is one, must lie in s 406 of the Crimes Act 1961.

[6]       The application is dismissed.

Solicitors:
Crown Solicitors, Auckland