Gebbie v Police - [2019] NZHC 1512

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-22

[2019] NZHC 1512

BETWEEN
BRENT GAYTHORNE GEBBIE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 June 2019

Appearances:

Appellant in Person with I Murray as Amicus Curiae C A Brook for the Respondent

Judgment:

1 July 2019

JUDGMENT OF CULL J

Overview

[1] Mr Gebbie seeks to appeal his conviction for criminal harassment under the Harassment Act 1997, but asks which Court has jurisdiction to hear it – the High Court or the Court of Appeal?

[2] Mr Gebbie was convicted by a jury of one charge of criminal harassment in the District Court at Wellington. Mr Gebbie, who is self-represented, first attempted to file his appeal at the High Court, but was directed to file at the Court of Appeal, as his appeal was from a trial by jury for a category 3 offence. Mr Gebbie then attempted to file at the Court of Appeal, but was again rejected. He was advised the High Court had jurisdiction to hear the appeal. Mr Gebbie filed his appeal once more with the High Court. The matter was set down for a hearing on jurisdiction and Mr Murray

GEBBIE v NEW ZEALAND POLICE [2019] NZHC 1512 [1 July 2019]

was appointed as Amicus to assist the Court.1 This judgment addresses solely the jurisdiction issue.

[3] The question as to which Court has jurisdiction to hear the appeal hinges on a determination of which section governs the appeal — is it s 34 of the Harassment Act 1997, or s 230 of the Criminal Procedure Act 2011? I have determined that Mr Gebbie’s appeal is governed by s 230 of the Criminal Procedure Act, and the Court of Appeal has jurisdiction to determine the appeal. My reasons follow.

Factual background

[4] Mr Gebbie began a relationship in mid-2014 with a family friend. In mid-2016, she ended her relationship with Mr Gebbie and, despite her making it clear to him that she no longer wished to pursue a relationship or have contact with him, he ignored her requests and continued contact.

[5] In December 2016, the police served Mr Gebbie with harassment and trespass notices in relation to the victim and her address. Between 3 January 2017 and 9 February 2017, Mr Gebbie emailed her on 21 separate occasions. Later, on 20 April 2017, the victim found packages in her mailbox from Mr Gebbie containing rings and a further letter from him.

[6] Mr Gebbie was convicted by a jury in the District Court at Wellington on 6 March 2019, and sentenced on 12 April 2019.2

The legislation

[7] To determine which section properly applies, I will consider the appeal provisions of the respective statutes, and the object and scheme of both Acts.

1 Gebbie v R HC Wellington CRI-2019-485-22, 6 May 2019 (Minute of Simon France J).
2 R v Gebbie [2019] NZDC 9132.

Appeal provisions of the respective statutes

[8] Section 34 of…

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: [2019] NZHC 1512
Decision Date: 1 July 2019

CaseChat Overview and Summary

In Gebbie v Police, the appellant sought to appeal his conviction for criminal harassment under the Harassment Act 1997, but was uncertain as to which court had jurisdiction to hear the appeal—the High Court or the Court of Appeal. The appellant, Brent Gaythorne Gebbie, was convicted by a jury in the District Court at Wellington of one charge of criminal harassment. The appeal related to a conviction arising from a jury trial for a category 3 offence. The central legal issue was which statute governs the appeal—section 34 of the Harassment Act 1997 or section 230 of the Criminal Procedure Act 2011.

The Court determined that the appeal should be governed by section 230 of the Criminal Procedure Act 2011, which sets out the procedural steps from the beginning to the end of a criminal prosecution. Section 34 of the Harassment Act 1997, on the other hand, should apply only to civil harassment proceedings. This interpretation was based on the object and scheme of both the Harassment Act and the Criminal Procedure Act, as well as the history of the framework for criminal procedure in New Zealand. The court found that the Criminal Procedure Act should apply to criminal harassment provisions, while section 34 of the Harassment Act should govern all other aspects of the civil harassment appeal procedure.

The Court of Appeal has jurisdiction to hear the appeal against conviction from a jury trial, as per section 230 of the Criminal Procedure Act 2011. The Court held that Mr Gebbie's appeal should be filed in the Court of Appeal, as the appellate Court with the appropriate appellate jurisdiction. The High Court does not have jurisdiction in this matter, and the appeal should not be filed there.

The final orders were that Mr Gebbie's appeal against conviction for criminal harassment under the Harassment Act, following a jury trial, is to be heard by the Court of Appeal, as the Court with the appropriate appellate jurisdiction under section 230 of the Criminal Procedure Act 2011. The High Court does not have jurisdiction in this matter, and the appeal should not be filed there.

Orders