Hicks v The King - [2023] NZCA 277

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA326/2022
[2023] NZCA 277

BETWEEN	STUART WILLIAM HICKS Applicant
AND	THE KING Respondent

Court:	Gilbert, Brewer and Moore JJ
Counsel:	A J Bailey and R J T George for Applicant B So for Respondent
Judgment: (On the papers)	3 July 2023 at 9.30 am

JUDGMENT OF THE COURT

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

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Mr Hicks was found guilty by Judge M J Callaghan of four charges of violence against his partner.[1] He was sentenced to 10 months’ home detention.[2]
[1]R v Hicks [2020] NZDC 19938.
[2]R v Hicks [2021] NZDC 3053.
Mr Hicks appealed his conviction to the High Court. Osborne J dismissed the appeal.[3]
[3]Hicks v R [2022] NZHC 1308.
Mr Hicks now applies for leave to bring a second appeal. By minute of 25 July 2022, Collins J directed that the leave application should be determined separately from the proposed appeal and be dealt with on the papers.
The application was set down for determination by us on the papers in the week of 19 September 2022. However, prior to any decision being released, Mr Bailey, who was then acting for Mr Hicks, advised that the basis of the application would change. It was to be founded on a contention that counsel acting on the appeal in the High Court failed to follow Mr Hicks’s instructions. Mr Bailey (who had a close working relationship with the previous counsel) was granted leave to withdraw and Ms Levy KC was recognised as his replacement. We anticipated that a new panel would need to be convened to consider the application in due course. The determination of the application was formally adjourned.
The application was not substantively progressed. Legal aid for Mr Hicks was withdrawn from 12 May 2023. Ms Levy was granted leave to withdraw. Gilbert J, by minute of 11 May 2023, advised Mr Hicks that any further documents in support of his application must be filed and served no later than 25 May 2023. Otherwise, the matter will be determined on the basis of the existing submissions and other materials.
On 24 May 2023, the registry received an email from Mr Hicks to the effect that he will not take further steps.
We will now decide Mr Hicks’s application for leave to bring a second appeal on the submissions and materials before us in the week of 19 September 2022.
We must decline Mr Hicks’s application unless we are satisfied that the appeal involves a matter of general or public importance; or a miscarriage of justice may have occurred.[4]

Background

[4]Criminal Procedure Act 2011, s 237(2). “Miscarriage of justice” is defined in s 232(4) as meaning any error, irregularity, or occurrence in or in relation to or affecting the trial that — (a) has created a real risk that the outcome of the trial was affected;…

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 Hicks v The King

Details

AGLC: Hicks v The King [2023] NZCA 277
Case: [2023] NZCA 277
Decision Date: 3 July 2023 at 9.30 am

CaseChat Overview and Summary

Stuart William Hicks applied for leave to bring a second appeal against his conviction and sentence for violence against his partner. The Crown opposed the application. The appeal was heard by Gilbert, Brewer and Moore JJ. The appellant had been found guilty by Judge M J Callaghan of four charges of violence against his partner and was sentenced to 10 months’ home detention. He appealed his conviction to the High Court, which was dismissed. He now applies for leave to bring a second appeal, contending that counsel acting on the appeal in the High Court failed to follow his instructions. The Court found that there was no basis for granting leave to bring a second appeal. The Court found that the application did not involve a matter of general or public importance, nor did it satisfy the Court that a miscarriage of justice may have occurred. The application for leave to bring a second appeal is declined.

The court considered the appellant's argument that counsel acting on the appeal in the High Court failed to follow his instructions. The court found that there was nothing before it which would indicate that the High Court Judge's use of Dr Healy's report was improper. The court also found that there was nothing in the way the Judge compared the two reports which would indicate a miscarriage of justice occurred. The court found that the Judge was plainly right that Dr Drummond's evidence was not fresh. Nor did it have a cogency that required it to be admitted in the interests of justice. The evidence did little more than opine that the photographs were too indistinct to corroborate the complainant’s account. This was an attempt to have a “second bite of the cherry”. The Court declined the application for leave to bring a second appeal.

Orders