Faleseione v The King

[2024] NZHC 1059

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000018

[2024] NZHC 1059

BETWEEN

TENNESSEE FALESEIONE

Applicant

AND

THE KING

Respondent

Hearing:

15 April 2024

Appearances:

R Roy for the Applicant

L Radich for the Respondent

Judgment:

2 May 2024

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 2 May 2024 at 3:00 pm.

Registrar/ Deputy Registrar

Solicitors/Counsel: R Roy, Manukau KFW, Manukau

FALESEIONE v R [2024] NZHC 1059 [2 May 2024]

Introduction/Background

[1]    On 3 November 2023 Judge Webby in the District Court at Manukau allowed Mr Faleseione’s application for costs under s 364 of the Criminal Procedure Act 2011 (CPA) in relation to a delay by the New Zealand Police in providing disclosure.1 The judge ordered the Police to pay $1,100 directly to the Ministry of Justice (Legal Aid) on behalf of Mr Faleseione.2

[2]    Mr Roy for Mr Faleseione sought an order that the police officer who made the error leading to the delay in discovery be liable to pay the costs personally. The judge did not consider that was appropriate. He did not consider the relatively junior police officer to have made the error in bad faith or with an intention to gain an advantage.3

[3]    Mr Faleseione wants to appeal. He does not intend to appeal the quantum of costs ordered in his favour. He wants to appeal the judge’s decision not to order the police officer to pay those costs personally.

[4]The relevant chronology is as follows:

(a)On 14 July 2022 Mr Faleseione was arrested and charged with wounding with intent to cause grievous bodily harm and unlawfully taking a motor vehicle.

(b)On 27 September 2022 Mr Roy for Mr Faleseione requested Police disclosure.

(c)On 5 January 2023 Mr Roy filed and served an application for disclosure and costs.

(d)On 19 January 2023 Mr Roy received the relevant disclosure.

(e)On 10 March 2023 Mr Faleseione pleaded guilty and was convicted.

1      R v Faleseione [2023] NZDC 24007.

2 At [12].

3 At [10].

(f)On 24 April 2023 Judge Webby heard Mr Faleseione’s costs application.

(g)On 8 August 2023 Mr Faleseione was sentenced in the Manukau District Court.

(h)On 3 November 2023 Judge Webby allowed Mr Faleseione’s application for costs, but declined to make an order that the police officer responsible for the delay in providing discovery be personally liable for those costs.

Leave to appeal

[5]    On 5 January 2024 Mr Faleseione filed his Notice of Appeal of Judge Webby’s decision dated 3 November 2023. The appeal was out of time, but only because there was a delay by the District Court Registry in sending the judgment to counsel. Mr Roy seeks leave pursuant to s 273(3) of the CPA for an extension of time to file the Notice of Appeal. The Crown does not oppose.

[6]    But, a prior issue arises. That is, whether the High Court or the Court of Appeal has jurisdiction to hear Mr Faleseione’s appeal. Mr Radich for the Crown submitted that pursuant to s 272(1) of the CPA the High Court does not have jurisdiction to hear the appeal and that it should instead have been filed in the Court of Appeal pursuant to s 272(1). Mr Roy disagreed.

[7]    I heard submissions from counsel on this jurisdictional issue and also the substantive appeal.4 This was on the basis that if I determined that the High Court did not have jurisdiction I would proceed no further.

Is the High Court or the Court of Appeal the first appeal court?

[8]Section 272 of the CPA provides as follows:

272 First Appeal Courts

4      This was in accordance with directions set out in Andrew J’s minute dated 9 April 2024.

1. The first appeal court for an appeal under this subpart is—

(a)the District Court presided over by a District Court Judge, if the appeal is against a decision of the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or

(b)the High Court, if the appeal is against a decision of the District Court presided over by a District Court Judge other than a decision—

(i)    made in proceedings for a category 3 offence after the defendant elected a jury trial; or

1. made in proceedings for a category 4 offence; or

(c)either the Court of Appeal or the Supreme Court, in any other case.

(2)   For the purposes of subsection (1), if a defendant elected a jury trial but subsequently withdrew his or her election before trial,—

(a)the defendant must be treated as if he or she had not elected a jury trial; but

(b)any appeal commenced before the date on which the defendant withdrew his or her election must be determined by the appeal court that had jurisdiction to determine the appeal at the time it was commenced.

[9]    Mr Faleseione was charged with a category 3 offence. He elected a trial by jury. As set out above, he filed his costs application on 5 January 2023. It was heard on 24 May 2023. In the meantime, on 10 March 2023 Mr Faleseione pleaded guilty and was convicted.

[10]   Mr Radich submits that the Court of Appeal is the first appeal court pursuant to s 272(1)(b)(i) because the decision under appeal was made in proceedings for a category 3 offence after Mr Faleseione had elected a jury trial. Mr Radich says that jurisdiction is determined by Mr Faleseione’s election which survives his subsequent guilty plea.

[11]   On the other hand, Mr Roy relied on s 272(2) of the CPA. Mr Roy submitted that Mr Faleseione’s guilty plea has the same effect as a withdrawal of his jury trial election and should be treated as such.

[12]   After the hearing, the Court of Appeal’s decision in Wirihana v R5 came to my attention. In that case the Court of Appeal determined that a guilty plea does not amount to a withdrawal of a jury trial election for the purposes of s 272(2) and other corresponding sections of the CPA:6

We are therefore satisfied that ss 230(2) and 247(2) of the CPA (and the equivalent amendments to ss 219, 272 and 297) do not apply to appeals that arise where the appellant entered a guilty plea, having previously elected a jury trial and where that election was not formally withdrawn under s 53. Those provisions only apply where there has been a formal withdrawal of the jury trial election under s 53.

[13]   Because this decision was not the subject of submissions at the hearing I gave Mr Roy the opportunity to make submissions on it. Mr Roy accepts that the decision is determinative of the matter, contrary to his arguments before me.

[14]   I agree. I therefore dismiss Mr Faleseione’s application to extend time for filing the appeal on the basis that this court has no jurisdiction to hear it. If Mr Faleseione had filed his appeal within time, I would have dismissed it on the same basis.

Robinson J

5      Wirihana v R [2019] NZCA 368.

6 At [25].