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…

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: [2024] NZHC 1059
Decision Date: 2 May 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Tennessee Faleseione sought leave to appeal a decision of the District Court, Manukau Registry, concerning costs awarded under the Criminal Procedure Act 2011. Faleseione was arrested and charged with specific offences. Following a guilty plea, he applied for costs due to a delay in police disclosure. The District Court judge awarded costs but declined to order a specific police officer to pay them personally. Faleseione appealed the refusal to make the police officer personally liable for the costs, but the appeal was out of time due to a delay by the District Court Registry in notifying counsel of the judgment.

The legal issue before the High Court was whether it had jurisdiction to hear the appeal or whether the Court of Appeal was the appropriate forum. The Crown argued that the Court of Appeal should hear the appeal since the District Court decision involved a category 3 offence and a jury trial election that was not formally withdrawn. Faleseione's counsel initially argued that the guilty plea effectively withdrew the jury trial election, making the High Court the appropriate forum. However, subsequent to the hearing, the Court of Appeal's decision in Wirihana v R clarified that a guilty plea does not amount to a withdrawal of a jury trial election for these purposes. Faleseione's counsel accepted that this decision was determinative and conceded that the Court of Appeal had jurisdiction.

The High Court, finding itself without jurisdiction, dismissed Faleseione's application to extend the time for filing the appeal. Consequently, the Court determined that even if the appeal had been timely, it would have been dismissed on the grounds of improper jurisdiction. The Court did not entertain the substantive merits of the appeal, focusing solely on the jurisdictional issue.

Orders