Gorgus v The Queen

[2020] NZCA 46

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.

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REASONS OF THE COURT

(Given by Lang J)

1. 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.

2. 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.

3. 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

1. As we endeavoured to explain to Mr Gorgus during the hearing, there is no longer any jurisdiction for this Court to consider his appeal. 

2. 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.

3. We are therefore satisfied this Court has no jurisdiction to consider the present application.  It is accordingly declined.

Solicitors:
Crown Solicitor, Auckland for Respondent