Genge v The Queen - [2019] NZSC 35

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 6/2019
[2019] NZSC 35

BETWEEN	RICHARD LYALL GENGE Applicant
AND	THE QUEEN Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	Applicant in person A D H Colley for Respondent
Judgment:	3 April 2019

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was, along with two co‑offenders, convicted of rape and murder in 1995. He was sentenced to life imprisonment with a minimum period of imprisonment of 15 years for the murder and to a concurrent sentence of 12 years’ imprisonment for the rape.[1]
[1]R v Kirner HC Christchurch T43/95, 25 October 1995 (Fraser J).
The applicant filed an appeal in 1995 against his conviction for rape and against the minimum period of imprisonment imposed in relation to the murder. He did not appeal against his conviction for murder or against the sentence imposed for the rape at that time. He applied for legal aid. Legal aid was granted for the appeal against the minimum period of imprisonment imposed in relation to the murder, but declined in relation to his appeal against his conviction for rape.
In early 1996, the applicant abandoned the appeal (both in relation to the minimum period of imprisonment for the murder and the conviction for rape). The appeal was formally dismissed by the Court of Appeal in February 1996. Although the applicant has served a term longer than the minimum period of imprisonment imposed on him in relation to the murder conviction, he has, to date been declined parole and remains a serving prisoner.
In early 2017, some 21 years after his appeal to the Court of Appeal had been abandoned and formally dismissed, the applicant applied to that Court for leave to withdraw the notice of abandonment of his appeal against the rape conviction and the imposition of the minimum period of imprisonment for murder. He also applied for an extension of time to appeal against the murder conviction and the sentence imposed for the rape. The Court of Appeal dealt with these applications together. It declined both applications.[2]
[2]Genge v R [2017] NZCA 466 (Winkelmann, Wylie and Whata JJ).
The applicant seeks leave to appeal to this Court against the Court of Appeal decision. In response, the Crown raises a jurisdictional issue. As the applicant’s proceeding commenced before the Criminal Procedure Act 2011 came into effect, the applicable legislation in relation to the present application is the Crimes Act 1961.[3] The right of appeal against a decision of the Court of Appeal in a criminal matter was dealt with in s 383A(1) of the Crimes Act, which provided:
With the leave of the Supreme Court, a convicted person may appeal to the Supreme Court against a decision of the Court of Appeal on appeal under section 383.
[3]Criminal Procedure Act 2011, s 397.
Counsel for the Crown points to a number of leave decisions of this Court where the…

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.

Continue reading Genge v The Queen

Details

AGLC: Genge v The Queen [2019] NZSC 35
Case: [2019] NZSC 35
Decision Date: 3 April 2019

CaseChat Overview and Summary

In the case of Genge v The Queen, the applicant, Richard Lyall Genge, sought leave to appeal the Court of Appeal's decision to refuse his application for leave to withdraw his notice of abandonment of his 1995 appeal against his rape conviction and minimum period of imprisonment for murder. The Court of Appeal had also refused the applicant an extension of time to appeal against his murder conviction and rape sentence. The Supreme Court of New Zealand was required to decide if it had jurisdiction to hear the appeal against the Court of Appeal's decision and whether there were exceptional circumstances justifying a direct appeal from the High Court. The court also needed to assess if the Court of Appeal's decisions led to a miscarriage of justice.

The Supreme Court held that it did not have jurisdiction to hear the appeal against the Court of Appeal's decision, as the applicable legislation at the time was the Crimes Act 1961. The Court found that the Court of Appeal's refusal to grant leave to appeal or to allow the withdrawal of the notice of abandonment could not be characterised as a decision "on appeal" for the purposes of s 383A of the Crimes Act. Even if the Court had jurisdiction, the Supreme Court concluded that it would not have granted leave to appeal because the applicant's arguments did not have a realistic prospect of success, and no miscarriage of justice arose from the Court of Appeal's decisions. Additionally, the Court found that there were no exceptional circumstances justifying a direct appeal from the High Court.

The Supreme Court dismissed the application for leave to appeal.

Orders