Gregory v Gollan

IN THE COURT OF APPEAL OF NEW ZEALAND
CA404/07
[2007] NZCA 528
BETWEENMICHAEL GREGORY

Applicant

ANDTHOMAS GOLLAN & ORS

Respondents

Hearing:12 November 2007

Court:William Young P, Glazebrook and Chambers JJ
Counsel:G F Little and C S Henry for Applicant

M T Davies for Respondents

Judgment:21 November 2007 at 4.30pm

JUDGMENT OF THE COURT

AThe application for special leave to appeal out of time is granted. Special leave to appeal under s 26P(1AA) of the Judicature Act 1908 is also granted.
BCosts are reserved.

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REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1]       Mr Gregory claims damages from the respondents in relation to the actions of the police in the early morning of 24 June 2001. This involved the police entering Mr Gregory’s home and arresting him for a burglary in which it is now conceded he had no involvement.
[2]       On 26 September 2005 Mr Gregory gave notice that he required the proceeding to be tried by a Judge and jury. On 29 November 2005, the second respondent applied, pursuant to s 19A(5) of the Judicature Act 1908, for an order that the proceeding be tried before a Judge alone. This application was supported by the other respondents.
[3]       On 21 September 2006, Associate Judge Doogue, in CIV 2005-404-003485, granted the respondents’ application and directed that the trial take place before a Judge alone. On 19 February 2007, Allan J dismissed Mr Gregory’s application for review of the Associate Judge’s decision and, on 4 July 2007, Allan J declined Mr Gregory’s application for leave to appeal to this Court.
[4]       Mr Gregory now applies for special leave to appeal to this Court under s 26P(1AA) of the Judicature Act 1908 against Allan J’s decision of 19 February 2007. As he was late in filing his application, Mr Gregory also seeks special leave to appeal out of time.
Mr Gregory’s contentions
[5]       Mr Gregory submits that special leave under s 26P(1AA) should be granted because of the constitutional significance of the right to trial by jury. He submits that the High Court decisions were wrong because no reasonable judge could, applying the correct principles, have directed that what he contends is a simple case of unlawful actions by public officers should be tried by a Judge alone.
[6]       In the alternative, he submits that, if the principles relating to applications under s 19A(5) as set out in the case law to date were correctly applied in this case, then they should be changed to accord proper significance to the constitutional right to trial by jury.
[7]       Mr Gregory also submits that, given the importance of the right to a jury, the application should not have been heard by an Associate Judge.
Decision
[8]       We are satisfied that Mr Gregory’s proposed appeal raises issues of principle of sufficient importance to justify the granting of special leave under s 26P(1AA). Special leave is therefore granted.
[9]       An adequate explanation for the late filing has been provided and special leave to appeal out of time is also granted.
[10]     Costs are reserved.
Solicitors:
Witten-Hannah Howard, Auckland for Applicant
Stephen Ross, New Zealand Police Association, Wellington, for First, Third, Fourth and Fifth Respondents
Meredith Connell, Auckland for Second Respondent

The Court of Appeal of New Zealand heard an application from Michael Gregory against Thomas Gollan and others. The applicant, Mr Gregory, sought damages for the wrongful arrest and detention by the police during a home invasion and arrest for a burglary he did not commit. The case involved the interpretation and application of the right to trial by jury under the Judicature Act 1908 and the appropriate circumstances under which a case could be tried by a judge alone rather than a jury. The court was required to decide whether the High Court judge correctly exercised his discretion in allowing the case to be tried by a judge alone, and whether Mr Gregory's constitutional right to trial by jury was appropriately considered.

The court considered Mr Gregory's argument that the High Court judge erred in directing that his case be tried by a judge alone. Mr Gregory contended that the principles set out in the existing case law for determining when a case should proceed before a judge alone were misapplied, or that these principles themselves should be reconsidered to give proper weight to the constitutional right to trial by jury. Additionally, Mr Gregory argued that the application to try the case by a judge alone should not have been heard by an Associate Judge, given the constitutional importance of the right to a jury trial.

The Court of Appeal found that the proposed appeal raised issues of principle of sufficient importance to warrant special leave under section 26P(1AA) of the Judicature Act 1908. The court granted special leave to appeal, accepting that an adequate explanation had been provided for the late filing of the application. The court reserved costs for further consideration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established