Jessop v R - [2007] NZSC 96

IN THE SUPREME COURT OF NEW ZEALAND
SC 8/2006
[2007] NZSC 96
EMELYSIFA JESSOP
v
THE QUEEN
Court:Elias CJ, Blanchard and Anderson JJ
Counsel:T Ellis for Applicant

M D Downs for Crown

Judgment:30 November 2007

JUDGMENT OF THE COURT

THE APPLICATION TO SET ASIDE DISMISSAL OF LEAVE IS DISMISSED.
REASONS
[1]       The applicant applies to set aside the leave judgment of this Court dated 27 March 2006. By it, she was declined leave to appeal against the Court of Appeal’s judgment of 19 December 2005 dismissing her appeal against conviction and sentence on a charge of aggravated robbery. The leave application was dismissed by Elias CJ, Blanchard and Tipping JJ, acting for the Court in accordance with s 15 of the Supreme Court Act 2003. The basis upon which the leave judgment is challenged in the present application is the composition of the leave Court. The appellant contends that Elias CJ and Tipping J should have been disqualified because of a reasonable apprehension of bias. It is also maintained that there was a failure of natural justice, and a breach of s 27 of the New Zealand Bill of Rights Act, because the appellant was not notified of the composition of the leave Court, “thus preventing her from objecting to Elias CJ and Tipping J sitting”.
[2]       The matter has a long history. The appellant was one of those whose appeals were directed by the Privy Council in R v Taito[1] to be considered again by the Court of Appeal, after having first been dismissed on the papers. Tipping J had been a member of the Court of Appeal panel which had first dealt with the appeal on the papers. The subsequent Court of Appeal hearing following the successful appeal to the Privy Council was heard in December 2005 by a new panel. The appeal against conviction and sentence was dismissed in a judgment delivered on 19 December 2005.[2] It is this judgment against which the applicant sought leave to appeal to this Court.
[1] [2003] 2 NZLR 577.
[2]      R v Jessop (Court of Appeal, CA 13/00, 19 December 2005).
[3]       Before the trial and conviction that gave rise to this appeal, the applicant had earlier been convicted in respect of the same offending after pleading guilty in the Youth Court in 1998. She had been sentenced by Potter J in the High Court at Auckland in July 1998 to a term of imprisonment of four years. The conviction and sentence were set aside by the Court of Appeal, by consent, on the basis that the entry of the conviction in the Youth Court was a nullity. Because the procedural defect was fatal, the Court of Appeal was not required to consider the merits of the case against Ms Jessop. Nor was it required to consider the sentence imposed. A new trial was ordered. The Court of Appeal panel then comprised Eichelbaum CJ and Robertson and Elias JJ.
[4]       At the new trial before Potter J and…

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 Jessop v R

Details

AGLC: Jessop v R [2007] NZSC 96
Case: [2007] NZSC 96
Decision Date: 30 November 2007

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application by Emelysifa Jessop to set aside the dismissal of her leave to appeal against her conviction and sentence for aggravated robbery. The applicant sought to appeal the Court of Appeal's decision of 19 December 2005, which dismissed her appeal against conviction and sentence. The applicant argued that the leave judgment was flawed because the Chief Justice and Tipping J should have been disqualified due to a reasonable apprehension of bias. Furthermore, it was argued that there was a failure of natural justice and a breach of the New Zealand Bill of Rights Act as the applicant was not notified of the leave Court composition. The applicant claimed this prevented her from objecting to the Chief Justice and Tipping J sitting on the leave Court. The Court had to determine whether the composition of the leave Court was indeed flawed and whether this was sufficient grounds to set aside the dismissal of the leave application. The Court found that there was no reasonable apprehension of bias, as the Chief Justice and Tipping J had no recollection of the case and their previous involvement could not have affected their judgment. The Court also found that there was no failure of natural justice or breach of the New Zealand Bill of Rights Act, as the applicant was not prejudiced by not being notified of the leave Court composition. Therefore, the application to set aside the dismissal of leave was dismissed.

The Court concluded that the earlier decision declining leave was correct and no proper basis had been shown for departing from the decision. The application to set aside the dismissal of leave was dismissed, and the Court confirmed the earlier decision.

Orders