Gorgus v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA656/2019
[2020] NZCA 46

BETWEEN	ASHOR GORGUS Applicant
AND	THE QUEEN Respondent

Hearing:	3 March 2020
Court:	Collins, Simon France and Lang JJ
Counsel:	Applicant in person D G Johnstone for Respondent R M Mansfield as standby counsel appointed to assist the Court
Judgment:	10 March 2020 at 4.00 pm

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Mr Gorgus faced a charge of theft in the District Court. He elected trial by jury and lodged a pre-trial application challenging the admissibility of aspects of the evidence the Crown proposed to adduce at trial.
In a pre-trial ruling delivered on 12 December 2019, Judge Taumaunu held the evidence was admissible.[1] Mr Gorgus then lodged an appeal against that ruling under s 217 of the Criminal Procedure Act 2011 (the Act).
[1]R v Gorgus [2019] NZDC 24941.
On 23 December 2019, Mr Gorgus entered a guilty plea to the charge. Counsel advise us that he was sentenced on the same date. Notwithstanding that fact, he seeks to maintain his appeal against the Judge’s pre-trial ruling.

Jurisdiction

As we endeavoured to explain to Mr Gorgus during the hearing, there is no longer any jurisdiction for this Court to consider his appeal.
Where a defendant has elected trial by jury, s 217(2)(b) of the Act permits both the defendant and the Crown to seek leave to appeal pre-trial rulings as to the admissibility of evidence. Once Mr Gorgus entered his guilty plea and was convicted, however, the pre-trial phase ended. The admissibility issue he had raised ceased to have any relevance at that point because he acknowledged his guilt through his plea. Thereafter only two options were open to him to contest his liability under the charge. The first was by way of application to the District Court to vacate his guilty plea. The second was by way of appeal against conviction to this Court under s 229 of the Act. Under either route, however, Mr Gorgus would need to provide evidence explaining why he entered his guilty plea.
We are therefore satisfied this Court has no jurisdiction to consider the present application. It is accordingly declined.

Solicitors:
Crown Solicitor, Auckland for Respondent

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an application for leave to appeal from Ashor Gorgus, who was seeking to challenge a pre-trial ruling on the admissibility of evidence in a theft case that was heard in the District Court. The appeal was filed under section 217 of the Criminal Procedure Act 2011, which allows for an appeal against certain pre-trial rulings in criminal matters. The case was heard by Collins, Simon France, and Lang JJ, with D G Johnstone acting for the applicant and R M Mansfield as standby counsel for the respondent.

The legal issue before the Court was whether it had jurisdiction to entertain the appeal after Gorgus had entered a guilty plea and been sentenced. Section 217(2)(b) of the Act permits an appeal against a pre-trial ruling on the admissibility of evidence where a defendant has elected trial by jury. However, once a guilty plea has been entered, the admissibility of evidence becomes irrelevant, and the defendant's options to challenge their conviction are limited to an application to vacate the guilty plea or an appeal against conviction under section 229 of the Act. The Court needed to determine whether the application for leave to appeal was still within its jurisdiction after Gorgus had pleaded guilty.

The Court concluded that once Gorgus had pleaded guilty and was sentenced, the pre-trial phase of the proceedings had ended, and the admissibility of evidence was no longer a relevant issue. The Court found that it no longer had jurisdiction to consider the appeal against the pre-trial ruling, as the matter had moved beyond the pre-trial phase. The Court also noted that if Gorgus wished to challenge his conviction, he would need to do so through an application to vacate his guilty plea or an appeal against conviction, both of which would require him to provide reasons for entering the plea in the first place. The Court declined the application for leave to appeal, finding that it did not have the jurisdiction to hear it.

The Court's decision effectively ends Gorgus's attempt to appeal the pre-trial ruling on the admissibility of evidence, as the matter has moved beyond the pre-trial phase. The Court's reasoning is based on the understanding that once a defendant has pleaded guilty, the admissibility of evidence is no longer a relevant issue, and the defendant's options to challenge their conviction are limited to an application to vacate the guilty plea or an appeal against conviction. The Court's decision is final, and Gorgus's appeal against the pre-trial ruling is dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established