Holloway v Police - [2014] NZHC 1626

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…

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.

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Details

Case: [2014] NZHC 1626
Decision Date: 11 July 2014

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.

Orders