Holloway v Police

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-000007 [2014] NZHC 1626

BETWEEN  JAMES HOLLOWAY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   3 July 2014

Counsel:                  W Hawkins for Appellant

MJM Mitchell for Respondent

Judgment:                11 July 2014

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 11 July 2014 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Public Defence Service, Hawke’s Bay.

Crown Solicitor, Napier.

HOLLOWAY v NZ POLICE [2014] NZHC 1626 [11 July 2014]

Introduction

[1]      On 17 June 2013 the appellant, James Holloway, became involved in a heated argument with his former partner in the lounge of her home.  He became angry and grabbed the television that was on the cabinet in the room and threw it on the ground, smashing it.  When he was apprehended by the Police he explained that he smashed the television because he was angry.

[2]      Mr Holloway appeared in the Hastings District Court on 18 June 2013 before Judge Gittos.  He pleaded guilty and deposed that he would replace the television. He was sentenced to a fine of $250 with Court costs of $132.89, and by consent a protection  order  was  made  in  favour  of  the  complainant  under  s 123B  of  the Sentencing Act 2002. A special condition of that order was that Mr Holloway attend a counselling programme.

[3]      The counselling programme was what is known as the Dove programme. Mr Holloway decided he did not want to be part of this programme and refused to attend.   As  a  result  he  was  charged  with  failing to  attend  a  domestic violence programme.  He entered a plea of not guilty to that charge.  He did so on the basis that a protection order should not have been made against him in the first place.  He also at that point, on 5 February 2014, filed a notice of appeal out of time against his sentence and the protection order under s 116 of the Summary Proceedings Act 1957.

[4]      As the appeal was out of time Mr Holloway required an extension of time to appeal  under  s  123  of  the  Summary  Proceedings Act.    His  application  for  an extension of time to appeal and the appeal came before Katz J for hearing on 4 June

2014.

[5]      There  had  been  a  change  of  counsel.     A  barrister  had  appeared  for Mr Holloway at the initial hearing.   After the initial hearing, the Public Defence Service had then been briefed and it had filed the notice of appeal and pursued the application for an extension of time.  Before Katz J an issue arose at the outset of the hearing whether Mr Hawkins of the Public Defence Service was entitled to appear, and whether the Court had jurisdiction to determine the appeal as a criminal appeal.

[6]      This preliminary issue was raised because Mr Hawkins had become aware of the decision of Essel v Police.1   As a consequence of that decision the question arose whether an appeal…

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Case
[2014] NZHC 1626
Decision Date

CaseChat Overview and Summary

The case of Holloway v Police involved an appeal by James Holloway against his conviction and sentence, as well as a protection order made in favour of his former partner. Holloway argued that the protection order should not have been made against him in the first place. The appeal was initially heard by Katz J, who found that the appeal was out of time and that the matter required an extension of time to appeal. The case was subsequently heard by Asher J. The primary issue before the court was whether the appeal against the protection order should follow the criminal appeal process or the civil appeal process. Holloway's counsel argued that the criminal appeal process should apply, while the Crown's counsel focused on the merits of the appeal. The court found that the criminal appeal process was the appropriate mode of appeal against a protection order made in sentencing. The court found that the appeal was properly brought under the Summary Proceedings Act, and that the substantive issues raised on appeal had no merit. The court dismissed the appeal and granted an extension of time to appeal.

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