Harding v The Queen - [2019] NZCA 370

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA673/2018
[2019] NZCA 370

BETWEEN	BROWNIE JOSEPH HARDING Applicant
AND	THE QUEEN Respondent

Hearing:	11 June 2019
Court:	Brown, Wylie and Whata JJ
Counsel:	Applicant in person K S Grau for Respondent
Judgment:	16 August 2019 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal against conviction is dismissed.
BThe application for leave to bring a second appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

Following a jury trial Mr Harding was convicted of kidnapping (unlawful detention of victim with consent obtained by duress) and male assaults female.[1] On 9 November 2010 he was sentenced to two years and six months’ imprisonment.[2]
[1]He was acquitted on an alternative charge of kidnapping (unlawful detention without consent) and one of threatening to kill.
[2]R v Harding DC Whangarei CRI-2009-088-3107.
He filed an appeal against his sentence which was scheduled for hearing on 6 September 2011. However in August 2011 he abandoned the sentence appeal. Almost six years later Mr Harding applied for the leave of this Court to withdraw his notice of abandonment of appeal against sentence. That application was declined in November 2017.[3]
[3]Harding v R [2017] NZCA 538.
Then on 2 November 2018 he filed an appeal against both his conviction and sentence. In a minute of 6 November 2018 Winkelmann J directed that the appeal was to be received as if filed on the appropriate form.[4] Winkelmann J noted that an extension of time to pursue the appeal against conviction would be required as it was filed out of time. Furthermore, as a prior appeal against sentence had been abandoned, the new appeal should be treated as an application for leave to bring a second sentence appeal.
[4]Instead of the Crimes Act 1961 form used for appeals in respect of pre-2011 proceedings, Mr Harding used the Criminal Procedure Act 2011 form.
Hence this judgment addresses Mr Harding’s application for an extension of time to appeal against his conviction and his application for leave to bring a second sentence appeal from his sentence. Both applications are opposed.

Application for extension of time to appeal against conviction

Relevant principles

The power of this Court to extend time to appeal was conferred by s 388(2) of the Crimes Act 1961.[5] The section provided no guidance as to the factors to be taken into account in considering an extension but the touchstone is the interests of justice in the particular case: R v Knight.[6] The Court there said that the overall interests of justice in a particular case may call for balancing the wider interests of society in the finality of decisions against the interests of the individual applicant in having the conviction reviewed.
[5]It was repealed by s 6 of the Crimes Amendment Act (No 4) 2011 on 1 July 2013.
[6]R v Knight [1998] 1 NZLR 583 (CA)…

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 Harding v The Queen

Details

AGLC: Harding v The Queen [2019] NZCA 370
Case: [2019] NZCA 370
Decision Date: 16 August 2019 at 3.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered the appeal filed by Brownie Joseph Harding against his conviction and sentence. Harding was convicted of kidnapping (unlawful detention of the victim with consent obtained by duress) and male assaults female. He was acquitted on alternative charges of kidnapping (unlawful detention without consent) and threatening to kill. He was sentenced to two years and six months’ imprisonment. Harding had previously abandoned an appeal against his sentence, which was later declined by the Court of Appeal. Almost six years later, Harding applied for leave to withdraw his notice of abandonment of appeal against sentence, which was declined in November 2017. Subsequently, he filed an appeal against both his conviction and sentence.

The Court of Appeal was required to decide whether to grant an extension of time to appeal against conviction and whether to grant leave to bring a second appeal against sentence. The Court noted that the power to extend time to appeal was conferred by section 388(2) of the Crimes Act 1961. The Court considered the interests of justice in the particular case, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedies sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.

The Court found that the proposed appeal was weak and that the prosecution case was strong. The delay was considerable and the Court did not accept there was an adequate explanation for it. The Court also found that the application for leave to bring a second sentence appeal was misconceived, as the District Court Judge had valid grounds for imposing an uplift of six months for Harding's prior offending. Consequently, the application for an extension of time to appeal against conviction and the application for leave to bring a second appeal against sentence were dismissed.

Orders