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Colman v Police

Colman v Police

Case [2010] NZSC 147 8 December 2010

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IN THE SUPREME COURT OF NEW ZEALAND

SC 106/2010
[2010] NZSC 147

JOHN COLMAN

THE POLICE

Court: Elias CJ, McGrath and William Young JJ

Counsel: Applicant in person
S B Edwards for Police

Judgment: 8 December 2010

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

The applicant was found guilty in the District Court of using insulting language. On his appeal to the High Court, Allan J held the charge had been made out (and dismissed associated challenges to the process followed in the District Court) but discharged the applicant without conviction. Such discharge is deemed to be an acquittal by s 106(2) of the Sentencing Act 2002.
An application by the applicant for special leave to appeal to the Court of Appeal was dismissed by that Court.[1] This was on the basis that given the deemed acquittal, there was no jurisdiction to entertain a further appeal. In reaching this conclusion the Court relied on and applied its previous decision in R v Terry.[2]
[1]Colman v Police [2010] NZCA 474.
[2]R v Terry [2007] NZCA 455.
The applicant then applied for leave to appeal to this Court from the decision of the Court of Appeal. There being no right of appeal from that judgment, his application was treated by the Registrar as an application for leave to appeal direct from the High Court judgment under s 144A of the Summary Proceedings Act 1957. The latter section is in these terms:
144A Appeal to Supreme Court
(1)With the leave of the Supreme Court, either party may appeal to the Supreme Court against—
...
(b)a determination of the High Court (other than a determination made on an interlocutory application (within the meaning of the Supreme Court Act 2003) made in a general appeal; or
...
(2)Subsection (1) is subject to section 14 of the Supreme Court Act 2003 (which provides that the Supreme Court must not give leave to appeal directly to it against a decision made in a court other than the Court of Appeal unless it is satisfied that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court).
It will be observed that an applicant for leave to appeal must be able to point to “a determination ... made in a general appeal”. The corresponding language in s 144 (in relation to appeals to the Court of Appeal) is “any determination of the High Court on a question of law arising in any general appeal”. In issue on this application is whether the conclusion of Allan J that the charge had been proved and his rejection of associated procedural challenges, all of which logically preceded his decision to discharge the applicant without conviction, amounted to a “determination” of the kind contemplated by s 144A(1)(b).
The word “determination” is used in a number of the related sections of Summary Proceedings Act, in particular…

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

AGLC: Colman v Police [2010] NZSC 147
Case: [2010] NZSC 147
Decision Date: 8 December 2010

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of Colman v Police involved an application for leave to appeal by John Colman against the Police. The applicant had been found guilty in the District Court of using insulting language. On appeal to the High Court, Allan J held that the charge had been proven but discharged the applicant without conviction, which is deemed an acquittal under the Sentencing Act 2002. An application for special leave to appeal to the Court of Appeal was dismissed, as the Court held that there was no jurisdiction to entertain a further appeal due to the deemed acquittal, in accordance with the decision in R v Terry. The applicant then sought leave to appeal to the Supreme Court from the High Court judgment. The central legal issue was whether the conclusion by Allan J that the charge had been proven and his rejection of procedural challenges, which preceded the decision to discharge the applicant without conviction, constituted a "determination" as required by section 144A(1)(b) of the Summary Proceedings Act 1957 for an appeal to the Supreme Court.

The Supreme Court found that the term "determination" in section 144A(1)(b) refers to decisions on questions of law that are material to an adverse judgment. Since the applicant was successful in the High Court in terms of result, there was no right of further appeal. The Court adhered to the principle that a defendant discharged without conviction has no right of appeal unless also aggrieved by an adverse order. The Court also noted that distinguishing between an acquittal on the merits and a discharge without conviction would undermine the clear language of the Sentencing Act. Therefore, the application for leave to appeal was dismissed.

In summary, the Supreme Court ruled that the applicant did not have the right to appeal the High Court's judgment to the Court of Appeal or the Supreme Court, as the High Court's decision to discharge the applicant without conviction effectively amounted to an acquittal. The Court's judgment reinforces the principle that rights of appeal are tied to adverse orders rather than a judge's intermediate reasoning steps.

Orders