Hala v Police - [2015] NZHC 1665

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000149 [2015] NZHC 1665

BETWEEN
LEVUKA HALA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 July 2015

Appearances:

Robert Samuel for the Appellant
Rebecca Thomson for the Respondent

Judgment:

16 July 2015

JUDGMENT OF MOORE J [Application for leave to appeal]

This judgment was delivered by me on 16 July 2015 at 4:45pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

HALA v NEW ZEALAND POLICE [2015] NZHC 1665 [16 July 2015]

Introduction

[1] The appellant, Levuka Hala, faces one charge of burglary and one charge of using a document to obtain a financial advantage. On 28 May 2015, Judge Kellar refused Mr Hala’s application to change his election from a Judge-alone trial to a jury trial. He now seeks leave to appeal against this pre-trial ruling.

[2] The Police maintain there is no jurisdiction to hear the appeal but, in any event, the appeal should be dismissed on its merits.

[3] In this judgment I shall consider the question of jurisdiction, following which I shall examine the substantive question of law raised on this appeal. First, it is necessary to examine the factual and procedural background in some detail.

Background

[4] The facts of the offending are largely irrelevant to the appeal. What is important to note, for present purposes, is that the charges which Mr Hala faces occurred on 19 July 2014 and 21 October 2014.

[5] Mr Hala first appeared in the Auckland District Court on 27 November 2014 when he was represented by his previous counsel. He entered pleas of not guilty but no election for trial by jury was made. By default, the mode of trial was therefore by Judge-alone.1

[6] He next applied for a case review hearing on 23 January 2015 by which time he was represented by his new counsel and counsel on this appeal, Mr Samuel. Mr Samuel requested an adjournment to 4 March 2015. Thereafter, at Mr Samuel’s request, the matter was adjourned a further three times.

[7] On 29 April 2015, Mr Hala sought a sentence indication. On 7 May 2015, Mr Samuel advised that the indication was not accepted by Mr Hala. At the same time, Mr Samuel applied under s 51 of the Criminal Procedure Act 2011 (“the Act”)

to elect a trial by jury. The application was made out of time. It was determined by

Judge Kellar on 28 May 2015 and is the decision which is now appealed.

[8] Judge Kellar accepted the right to elect a trial is a fundamental one enshrined in the Act but emphasised any application to change election must be made in a timely fashion. His Honour declined the application, observing that:2

There have now been a number of months and a number of Judge-alone trial case review hearings in which there [has been] the opportunity to make that application.

Analysis

Jurisdiction

[9] The relevant sections of the Act are ss 51 and 296. They are…

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.

Continue reading Hala v Police

Details

AGLC: Hala v Police [2015] NZHC 1665
Case: [2015] NZHC 1665
Decision Date: 16 July 2015

CaseChat Overview and Summary

Levuka Hala sought leave to appeal against the refusal of a Judge-alone trial to a jury trial by Judge Kellar in the Auckland District Court. The Police maintained there was no jurisdiction to hear the appeal and, in any event, the appeal should be dismissed on its merits. The court considered whether it had jurisdiction to hear the appeal under s 296 of the Criminal Procedure Act 2011 and, if so, whether the judge erred in law in applying s 51(2) of the Act. The court found that there was no jurisdiction to hear the appeal as the decision to refuse the application did not relate to the determination of the charge and therefore did not fall within the terms of s 296 of the Act. The court also found that the judge did not err in law in applying s 51(2) of the Act, as there had been no change in circumstances that might reasonably affect the appellant's decision to elect a trial by jury. The appeal was declined for want of jurisdiction.

Orders