G C Gotlieb for Appellant (CA256/2016) No appearance for Appellant (CA314/2016) S G Vidal for Apellant (CA469/2016) C A Brook for Respondent in all appeals
Judgment:
20 December 2016 at 11 am
JUDGMENT OF THE COURT (Jurisdiction)
AAn appeal against a refusal to discharge an appellant without conviction is properly characterised as an appeal against conviction and sentence.
BThis Court is the first appeal court for the purposes of these three appeals.
These three appeals raise a common jurisdictional issue: which is the first appeal court – the High Court or this Court – for conviction or sentence appeals where an appellant has been convicted in the District Court following his or her withdrawal of an election of a jury trial, substituted by an election of trial by judge alone?
One of the three appeals raises an additional jurisdictional issue, which we shall address first: is an appeal against a refusal to discharge an appellant without conviction an appeal against conviction, an appeal against sentence, or both?
Winkelmann J directed that all appeals be set down for hearing together to determine the preliminary question of jurisdiction only: the substantive appeals will be heard later. The direction was made on the assumption that the underlying issue would be contested. However, Taulauniu Mafua, the appellant in CA314/2016, did not participate and Mr Gotlieb and Ms Vidal, respectively counsel for Martyn Jackson and Chloe Syme, the appellants in CA256/2016 and CA469/2016, did not challenge Ms Brook’s submissions for the Crown. In the absence of argument, and given our independent agreement with the Crown’s position, we are able to address the issues with relative brevity.
Facts
Ms Syme appeals against, first, the refusal of a District Court Judge to grant her a discharge without conviction and, second, if that fails, her sentence of five months of community detention and 180 hours of community work. She originally faced three category 3 charges of knowingly permitting her house and car to be used between January and August 2015 for the purpose of selling methamphetamine. She elected trial by jury in the District Court. However, at a pre‑trial hearing two of the original charges were withdrawn and the remaining charge, to which she pleaded guilty, was amended to cover a period from 15 to 29 August 2015.
Messrs Jackson and Mafua appeal against their convictions and sentences of imprisonment imposed following guilty pleas in the District Court. For present purposes, it is sufficient for us only to set out the procedural background in Mr Jackson’s case. Mr Jackson and a co-offender originally faced numerous category three charges of producing and supplying methamphetamine. They elected trial by jury.…
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
AGLC
Jackson v R [2016] NZCA 627
Case
[2016] NZCA 627
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New Zealand heard three appeals from Martyn Jackson, Taulauniu Mafua, and Chloe Syme against their convictions and sentences in the District Court. The primary issue was the jurisdiction of the Court of Appeal versus the High Court for appeals against conviction and sentence in cases where the appellants initially elected a jury trial but later withdrew this election, opting for a judge-alone trial. Chloe Syme additionally contested the refusal of the District Court to grant her a discharge without conviction and the subsequent sentence imposed.
The court first had to determine whether an appeal against the refusal to grant a discharge without conviction is an appeal against conviction, sentence, or both. The court found that such an appeal is essentially an appeal against conviction, with a secondary appeal against sentence if the conviction appeal fails. This conclusion was based on the statutory framework and the rationale that the essence of the challenge is to the entry of a conviction.
The second issue was which court holds the initial jurisdiction to hear appeals against conviction and sentence in cases where the appellant initially elected a jury trial but later changed to a judge-alone trial. The court held that the initial election, not the actual mode of trial, governs jurisdiction. Therefore, the Court of Appeal is the first appeal court for such cases, regardless of the eventual mode of trial.
The court concluded that the Court of Appeal is the appropriate first appeal court for all three appeals, aligning with the statutory provisions despite an apparent anomaly in the law. The substantive issues in the appeals will be heard at a later date.