Hughes v Police - [2008] NZCA 275

IN THE COURT OF APPEAL OF NEW ZEALAND
CA228/2008
[2008] NZCA 275
ANDREW ZOLTAN HUGHES
v
NEW ZEALAND POLICE
Hearing:21 July 2008

Court:Baragwanath, Wild and Heath JJ
Counsel:R M Gould for Appellant

T Epati for Crown

Judgment:4 August 2008 at 11am

JUDGMENT OF THE COURT

SPECIAL LEAVE TO APPEAL IS GRANTED ON THE QUESTION SET OUT AT PARA [27].
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Introduction
[1]        Mr Hughes seeks special leave to bring a second appeal against sentence. The application is made under s 144(3) of the Summary Proceedings Act 1957.
[2]        Mr Hughes was charged with two offences under the Summary Offences Act 1981, arising out of incidents that occurred on the night of 4 May 2007: following the female complainant, knowing that his conduct was likely to cause her reasonably to be frightened (s 21(1)(b)) and being found in an enclosed yard without reasonable excuse (s 29(1)(b) of the Act). He pleaded not guilty to both charges.
[3]        The charges were heard before Judge Harrop, in the District Court at Wellington, on 18 September 2007. In a reserved judgment, given on 31 October 2008, the Judge found Mr Hughes guilty on both charges and remanded him for sentence: Police v Hughes DC WN CRI 2007-085-3094 31 October 2007.
[4]        The maximum penalty for each offence is a term of imprisonment of three months or a fine not exceeding $2000. In sentencing Mr Hughes on 7 December 2007, despite a strong submission that Mr Hughes ought to be discharged without conviction, Judge Harrop ordered that Mr Hughes come up for sentence if called upon within six months: Police v Hughes DC WN CRI 2007-085-3094, 7 December 2007.
[5]        Mr Hughes appealed against conviction and sentence on the grounds that the Judge ought to have discharged him without conviction. On 18 March 2008, Gendall J allowed the appeal, in part: Hughes v Police HC WN CRI 2007-485-155 18 March 2008. The sentence imposed by Judge Harrop on the s 21(1)(b) charge was upheld, but a discharge without conviction was entered on the s 29(1)(b) offence.
[6]        Mr Hughes sought leave from the High Court to appeal against that Court’s refusal to order a discharge without conviction on the remaining charge. Gendall J dismissed that application, holding that no ground had been made out to justify a second appeal: Hughes v Police HC WN CRI 2007-485-155 16 April 2008.
The threshold test for leave
[7]        Section 144(1) of the Summary Proceedings Act permits an unsuccessful applicant for leave in the High Court to seek special leave to bring a second appeal from this Court. Section 144(3) provides:
144     Appeal to Court of Appeal
…
(3)     Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such…

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: [2008] NZCA 275
Decision Date: 4 August 2008

CaseChat Overview and Summary

Hughes sought special leave to bring a second appeal against his sentence, under section 144(3) of the Summary Proceedings Act 1957, after the High Court dismissed his application for leave to appeal. Hughes was found guilty of two offences under the Summary Offences Act 1981 and was sentenced by Judge Harrop in the District Court. Hughes appealed against both conviction and sentence to the High Court, where Gendall J allowed the appeal in part, ordering a discharge without conviction on one of the charges. Hughes sought leave to appeal to the High Court against that decision, but Gendall J refused the application. The question before the Court of Appeal was whether special leave should be granted for a second appeal.

The legal issues the Court was required to decide were whether the statutory policy of finality in summary proceedings should be overridden, and if so, whether the proposed appeal points had been raised before the High Court. The Court noted that a second appeal is rare and is only allowed if it raises a question of law of general or public importance. The Court also considered that the proposed appeal points had not been raised before the High Court, but the arguments made before Gendall J reflected the same underlying issue as the proposed appeal points.

The Court of Appeal granted special leave to appeal on the question of whether section 107 of the Sentencing Act 2002 created a threshold for the exercise of the discretion to discharge without conviction that is different from the test expressed in Turner and Roberts. The Court considered that the proper approach to the exercise of the discretion is a point of law of general or public importance, which ought to be submitted to the Court of Appeal for resolution.

No final orders were made in this judgment. The case will now proceed to a full hearing before the Court of Appeal to determine the legal issue identified.

Orders