Graham v Police

[2014] NZHC 1130

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000028 [2014] NZHC 1130

BETWEEN

WILFRED RAMEKA GRAHAM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	26 May 2014
Appearances:	D Nairn for Appellant K Muirhead for Respondent
Judgment:	27 May 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 27 May 2014 at 12.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

Copy to:            D Nairn, Auckland

GRAHAM v NZ POLICE [2014] NZHC 1130 [27 May 2014]

[1]      Mr Graham was charged that, together with another, he stole a bag containing certain items.   After several appearances the matter ultimately came before District Court Judge Paul on 23 January 2014. The Judge made the following record: 1

Charge withdrawn.  Do not have any other charges. That is it.

[2]      Mr  Graham  purports  to  appeal.    He  considers  the  Court  should  have dismissed the charge rather than permitting it to be withdrawn.

[3]      As the charge was laid initially on 5 April 2013 it is to be determined under the provisions of the Summary Proceedings Act 1957.   Section 115 of that Act provides a general right of appeal in the following terms:

115     Defendant's general right of appeal to [High Court]

[(1)      Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint, and—

(a)      Convicts any defendant; or

(b)      Makes any order, including—

(i)       An order for the payment for costs; or

(ii)      An order declining an application for the payment for such costs; or

(iii)     An order for the estreat of a bond,—

the person convicted or against whom the order is made may appeal to the High Court.]

(2)       In the case of a conviction, the appeal may be against the conviction and the sentence passed on the conviction, or against the conviction only, or against the sentence only; and, in the case of an order for the payment of money, the appeal may be against the order and the amount of the sum ordered to be paid, or only against the amount of the sum ordered to be paid.

[4]      As the charge was withdrawn, there is no decision or order or determination of the charge coming within s 115:  Burton v Police;  Bell v Police;  and Police v S.2

1      Police v Graham DC Manukau CRI-2013-092-8546, 23 January 2014.

2      Burton v Police [1961] NZLR 698, Bell v Police HC Dunedin CRI-2007-412-015, 6 June 2007;

and Police v S [1977] 1 NZLR 1 (CA).

[5]      The above decisions confirm that where there has not been a determination of an information there is no basis for an appeal.  As Panckhurst J observed in Bell v Police:

[12]     … The reasoning is obvious.   If a Judge has not entered into the merits of the case and given a decision on that basis, then there is nothing with which this Court may concern itself.

[6]      Mr Nairn sought to submit that it was necessary to obtain a transcript of the exchanges  between  counsel  and  the  Judge  before  the  charge  was  withdrawn  to resolve  the  issue.    At  an  earlier  stage  at  callover Andrews  J  had  directed  the transcript be obtained.  I am satisfied that if Andrews J was aware of the authorities that I have been made aware of she would not have made that direction.   The authorities are quite clear. There is no jurisdiction for the appeal.

[7]      The record of the outcome before the District Court is sufficiently contained in the note signed by Judge Paul referred to above.  Further, whatever the discussion was between the Bench and counsel before the charge was ultimately withdrawn cannot be relevant.  In Bell’s case the hearing had been part-heard on two days and was continuing on a third day.  The Judge was concerned at the lack of progress and raised with police whether the information should be withdrawn.   As a result the charge was withdrawn.  It appears the charge was withdrawn at the suggestion of the Judge in that case.  Despite that the decision of Panckhurst J is clear.  With respect I agree with it.

[8]      There  is  no  jurisdiction  for  this  appeal.    It  is  dismissed  for  want  of jurisdiction.

Venning J