Gaunt v Police
[2017] NZCA 178
•12 May 2017 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA568/2016 [2017] NZCA 178 |
| BETWEEN | JAMIN GAUNT |
| AND | NEW ZEALAND POLICE |
| Court: | Kós P, Courtney and Williams JJ |
Counsel: | J P Miller for Appellant |
Judgment: (On the papers) | 12 May 2017 at 4.00 pm |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is granted.
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REASONS OF THE COURT
(Given by Courtney J)
Following a judge alone trial in the District Court Mr Gaunt was convicted on one charge of common assault (spitting).[1] He was not permitted time to make a written application for a discharge without conviction.[2] His oral application for a discharge without conviction was refused without reasons being given and without the District Court Judge considering the relevant statutory criteria. His appeal to the High Court was dismissed by Cull J.[3]
[1]Crimes Act 1961, s 196.
[2]Contrary to r 2.12(2)(p) of the Criminal Procedure Rules 2012.
[3]Gaunt v New Zealand Police [2016] NZHC 2505.
We allow Mr Gaunt’s application for leave to bring a second appeal. In accordance with s 340(3)(a) of the Criminal Procedure Act 2011 we are not required to give reasons for doing so.
The ground of appeal is whether a miscarriage of justice occurred as a result of the Judge failing to take account of the complainant’s provocative act in spitting at Mr Gaunt first in assessing the gravity of the offending, failing to take account of Mr Gaunt’s difficult personal circumstances in assessing the effect of conviction on his employment prospects, and the effect of these two factors on the proportionality assessment.
Solicitors:
John Miller Law for Applicant
Crown Law Office, Wellington for Respondent
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