George v Police - [2024] NZHC 3923

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-0046

[2024] NZHC 3923

BETWEEN STEVEN NICHOLAS VASSOS EVANGELOS GEORGE
Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: On the papers

Counsel:

M J L Olphert for Applicant

L M McMaster and I A A Mara for Respondent

Judgment:

19 December 2024

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 19 December 2024 at 11 am

Registrar/Deputy Registrar Date: ...................................

Solicitors: Olphert Law, Rotorua
Gordon Pilditch, Rotorua

GEORGE v POLICE [2024] NZHC 3923 [19 December 2024]

[1] This application for leave to appeal was called before me on 1 October 2024. Matters did not proceed that day, so that the applicant, Mr George, could seek legal advice, which he has now done.

Introduction

[2] Following a Judge-alone trial in October 2007, Mr George was convicted of one charge of common assault.

[3] Mr George now applies for leave to file an appeal (well) out of time and, if leave is granted, seeks to be discharged without conviction. Counsel have no objection to my determining the matter on the papers.

[4] As Crown counsel, Mr Mara, says in his written submissions, s 397 of the Criminal Procedure Act 2011 provides that any appeal in a proceeding commenced prior to 1 July 2013 is to be determined under the law then in force. At the time Mr George was convicted, any appeal was governed by the Summary Proceedings Act 1957 (“SPA”). This required that any notice of appeal be filed within 28 days of sentence, subject to any extension of time which might be granted in the interests of justice (see s 123 of the SPA).

Background

[5] The charge of assault arose from a confrontation between Mr George and a neighbour, in the course of which Mr George punched the neighbour. It appears this was a single punch and not a particularly serious incident.

[6] Mr George pleaded not guilty to the charge, but was convicted following a Judge-alone trial. Mr George then dismissed his legal counsel. In an affidavit sworn on 29 October 2024, and filed in support of this application, Mr George states that his lawyer failed to advise him of the possibility of applying for a discharge without conviction.1

1 It is, of course, not possible for counsel who has been dismissed to advise of anything.

[7] Mr George represented himself at sentencing in December 2007. He did not seek a discharge without conviction. The fact that he did not do so does not preclude him seeking a discharge on appeal.

[8] In accordance with the recommendation of Corrections, Mr George was sentenced to 160 hours of community work. Mr George completed the community work in February 2008, without incident, and paid $118 in reparation.

Application for extension of time

[9]In [15] of Ellis v R, the Supreme Court said:2

... The touchstone [in determining an application to extend time] will always be the interests 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.

Continue reading George v Police

Details

AGLC: George v Police [2024] NZHC 3923
Case: [2024] NZHC 3923
Decision Date: 19 December 2024

CaseChat Overview and Summary

In this case, Steven Nicholas Vassos Evangelos George applied for leave to appeal a 2007 conviction for common assault, which occurred out of time. The application was heard by Justice Peters in the High Court of New Zealand. Mr George sought a discharge without conviction if leave to appeal was granted. The legal issues before the court included whether the application for an extension of time was justified under the Criminal Procedure Act 2011 and whether the direct and indirect consequences of the conviction were out of all proportion to the gravity of the offending.

Justice Peters considered the application under the principle that the touchstone for extending time is the interests of justice. The court weighed the delay, the reasons provided by Mr George, and the potential prejudice to the Crown. Mr George argued that the delay was due to a lack of awareness of the possibility of a discharge without conviction at his sentencing, and the impact of the conviction on his plans to retire overseas. The Crown opposed the application, arguing the need for finality in litigation and the lack of an adequate explanation for the delay. Despite the significant delay, Justice Peters granted the application, considering the consequences of the conviction to be out of proportion to the gravity of the offence, and granted the discharge without conviction.

Orders