Emelysifa Jessop v The Queen - [2006] NZSC 14

IN THE SUPREME COURT OF NEW ZEALAND
SC 8/2006
[2006] NZSC 14
EMELYSIFA JESSOP
v
THE QUEEN
Court:Elias CJ, Blanchard and Tipping JJ
Counsel:T Ellis for Appellant

M D Downs for Crown

Judgment:27 March 2006

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
REASONS
[1]       Ms Jessop seeks leave to appeal against the dismissal by the Court of Appeal of her appeal against conviction and sentence of four years eight months’ imprisonment on a charge of aggravated robbery. Her counsel seeks to raise a large number of grounds but he has failed to persuade us that any of them involves a question of principle or a possible miscarriage of justice. Mr Ellis makes a very general appeal to the International Convention on the Rights of the Child and to international jurisprudence on the Convention but it is not apparent how, if there had been any breach of the Convention, it could have led to unfairness in the trial in the particular case. That was certainly not demonstrated in relation to the grounds advanced in support of the proposed appeal which, in essence, repeated those convincingly rejected by the Court of Appeal upon the facts of the case.
[2]       As the Court of Appeal said, the identification process was not really an issue at the trial. There is no evidential basis for the assertion that Ms Jessop was unlawfully arrested. She herself agreed in her video interview that she was told that she was not obliged to accompany the detective to the police station and that she was free to leave. The allegation of inadequate or inappropriate performance by Ms Jessop’s mother as a nominated person under s 222(4) of the Children, Young Persons and Their Families Act 1989 failed on the facts even on the basis of additional evidence permitted to be introduced in the Court of Appeal.
[3]       It is also sought to argue that there has been undue delay in the hearing of the appeal. The position was unusual in that the matter involved a rehearing resulting from the Privy Council’s decision in R v Taito [2003] 2 NZLR 577. By the time that decision was delivered Ms Jessop had completed most of the custodial portion of her sentence which had been imposed in December 1999. After that time there was a further delay until the re-hearing in the Court of Appeal at the end of last year but much the greater part of that delay was caused by the unavailability of Mr Ellis. More importantly, no prejudice has been shown to have resulted from the delay in hearing the appeal. It is simply not arguable that a remedy should be provided by way of a quashing of the conviction in the present circumstances. The Privy Council itself said in Taito that the Court of Appeal should not be troubled by such an argument upon a rehearing. Obviously if a reduction in sentence might in some circumstances be an appropriate remedy – a…

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: [2006] NZSC 14
Decision Date: 27 March 2006

CaseChat Overview and Summary

Emelysifa Jessop appealed against her conviction and sentence for aggravated robbery, which was dismissed by the Court of Appeal, leading to an application for leave to appeal to the Supreme Court of New Zealand. The applicant argued numerous grounds for appeal, including unlawful arrest, inadequate performance by her mother as a nominated person under the Children, Young Persons and Their Families Act 1989, and undue delay in hearing the appeal. The court found that there was no evidential basis for the claims of unlawful arrest and inadequate performance by the mother. Regarding the delay, the court observed that while there was a significant delay in hearing the appeal, it did not result in any prejudice to the applicant. The court also dismissed the argument regarding the membership of the division of the Court of Appeal that heard the appeal, finding that the statutory authorisation for the assignment of High Court Judges to divisions of the Court of Appeal was sufficient.

The legal issues before the Supreme Court were whether the applicant had established any ground for leave to appeal that involved a question of principle or a possible miscarriage of justice. The court found that none of the grounds raised by the applicant involved such issues. The identification process, which was not really an issue at the trial, did not lead to any unfairness in the trial. The applicant's mother's performance as a nominated person was not inadequate or inappropriate on the facts. The undue delay in hearing the appeal did not result in any prejudice to the applicant. The appointment of a High Court Judge to sit on the appeal was lawful, and the use of temporary Judges did not violate the European Convention requirement for an independent and impartial tribunal.

In conclusion, the Supreme Court dismissed the application for leave to appeal. The applicant failed to persuade the court that any of the grounds for appeal involved a question of principle or a possible miscarriage of justice. The identification process, the performance of the applicant's mother as a nominated person, the undue delay in hearing the appeal, and the appointment of a High Court Judge to sit on the appeal did not lead to any unfairness in the trial. The court found that there was no basis for a remedy such as a quashing of the conviction in the present circumstances.

Orders