Graham v Police - [2018] NZCA 112

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA467/2017
[2018] NZCA 112

BETWEEN	ANDREW REX GRAHAM Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Cooper, Ellis and Katz JJ
Counsel:	Applicant in person A J Ewing for Respondent
Judgment: (On the papers)	23 April 2018 at 11 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

Andrew Graham seeks leave to appeal against a judgment of Edwards J in the High Court.[1] Her Honour dismissed an appeal by Mr Graham against a sentence imposed upon him in the District Court, but allowed an appeal relating to a subsequent sentence.
[1]Graham v Police [2017] NZHC 442.
By way of background, on 5 October 2016 Mr Graham was sentenced by Judge Hikaka, in the District Court at Manukau, to 25 months’ imprisonment for a range of dishonesty offending and one breach of bail (“the October Sentence”).[2] Mr Graham had stolen items (a laptop, phones and the like) from cars or workplaces and had dishonestly used six bank cards to withdraw money and make purchases.
[2]New Zealand Police v Graham [2016] NZDC 19932.
Subsequently, on 30 November 2016, Mr Graham was sentenced by Judge Ingram to a further nine months’ imprisonment, to be served cumulatively with the October Sentence, for his thirteenth breach of a protection order granted in favour of his former partner (“the November Sentence”).[3]
[3]R v Graham [2016] NZDC 24310.
Mr Graham appealed both sentences to the High Court. Edwards J dismissed his appeal against the October Sentence but allowed his appeal against the November Sentence. Her Honour considered Judge Ingram’s imposition of a nine‑month sentence of imprisonment was excessive, and replaced it with a cumulative sentence of three months’ imprisonment.
Mr Graham, now self-represented, seeks leave to bring a second appeal against both sentences.

Approach to application for leave to bring a second appeal

Second appeals in criminal cases are not available as of right. The Criminal Procedure Act 2011 requires convicted persons to obtain leave to bring a second appeal.[4] The Court of Appeal’s jurisdiction to give leave for a second appeal is limited to circumstances where the Court is satisfied that:[5]
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[4]Criminal Procedure Act 2011, s 253(1).
[5]Section 253(3).
Mr Graham did not suggest that his appeal involves a matter of general or public importance. Rather, his view is that a miscarriage of justice has occurred. This Court has previously confirmed that not every error will give rise to a miscarriage of justice.[6] Rather, the concept extends “to an error, irregularity or occurrence in or in relation to the appeal that has created a real risk that the outcome of the appeal was affected”.[7]

The proposed appeal

[6]McAllister v R [2014] NZCA 175, [2014]…

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: [2018] NZCA 112
Decision Date: 23 April 2018 at 11 am

CaseChat Overview and Summary

Andrew Rex Graham sought leave to appeal against a judgment of Edwards J in the High Court, which dismissed his appeal against a sentence imposed on him in the District Court, but allowed an appeal relating to a subsequent sentence. Graham was sentenced to 25 months' imprisonment for dishonesty offending and one breach of bail, and subsequently to a further nine months' imprisonment for his thirteenth breach of a protection order granted in favour of his former partner. Graham's application for leave to bring a second appeal was dismissed by the Court of Appeal of New Zealand. The court held that the criteria for leave to file a second appeal were not met, as there was no appearance of a miscarriage of justice. The court found that the alleged errors by the District Court judges did not create a real risk that the outcome of the appeal was affected, and that the imposition of cumulative sentences was appropriate given the different victims and types of offending involved. The application for leave to bring a second appeal was therefore dismissed.

Orders