Johnston v Electrical Workers Registration Board - [2023] NZCA 541

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA26/2023
[2023] NZCA 541

BETWEEN	IAN LESLIE JOHNSTON Applicant
AND	ELECTRICAL WORKERS REGISTRATION BOARD Respondent

Court:	Gilbert, Peters and Hinton JJ
Counsel:	M J Utting for Applicant S C Carter and A C R M Jeffares for Respondent
Judgment: (On the papers)	2 November 2023 at 12 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

The applicant, Mr Johnston, seeks leave to bring a second appeal against sentence and, in particular, against an order that he pay $5,719 by way of reparation.[1] Churchman J dismissed Mr Johnston’s first appeal in November 2022.[2]
[1]Electrical Workers Registration Board v Johnston [2022] NZDC 21163 [District Court sentencing notes].
[2]Johnstonv Electrical Workers Registration Board (No 2) [2022] NZHC 3190 [High Court judgment].
The application for leave is supported by an affidavit from Mr Johnston. The respondent, the Electrical Workers Registration Board (EWRB), opposes leave.
We may only grant leave to bring a second appeal against sentence if satisfied that the proposed appeal involves a matter of general or public importance, or if a miscarriage of justice may have occurred or may occur unless the appeal is heard.[3] That a successful appeal may not lead to a materially different outcome is relevant to the required assessment.

Introduction

[3]Criminal Procedure Act 2011, s 253(3).

Mr Johnston pleaded guilty to one charge of doing unauthorised electrical work, an offence under ss 74 and 162 of the Electricity Act 1992, and punishable by a fine of up to $50,000.
When sentencing Mr Johnston in September 2022, Judge A S Greig ordered him to pay a fine of $1,000 and $5,719 in reparation. The reparation ordered was in respect of loss that Mr Johnston’s offending was said to have caused to a Mr and Mrs Clark. Amongst other things, Mr Johnston’s offending was said to have delayed the Clarks in commencing building work by 12 weeks, this in turn prolonging the period for which they were in rented accommodation. Of the reparation ordered, $4,380 was for rent and it is that portion of the reparation which Mr Johnston wishes to pursue on appeal. There is no issue as to the balance of the reparation, nor as to the fine imposed.
The Court may impose a sentence of reparation in the circumstances of s 32 of the Sentencing Act 2002 (the Act). In essence, s 32 permits the Court to order an offender to pay a sum in respect of direct or consequential loss or damage to property or emotional harm caused by offending of which an offender has been convicted.[4] Mr Johnston’s consistent position has been that his offending did not delay the commencement of the Clarks’ building work, and thus he is not liable for the sum claimed by way of rent.

Background

[4]Mr Johnston’s offending was an infringement offence and, as such, did…

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 Johnston v Electrical Workers Registration Board

Details

AGLC: Johnston v Electrical Workers Registration Board [2023] NZCA 541
Case: [2023] NZCA 541
Decision Date: 2 November 2023 at 12 pm

CaseChat Overview and Summary

In the case of Johnston v Electrical Workers Registration Board, the applicant, Ian Leslie Johnston, sought leave to bring a second appeal against a sentence imposed by the District Court, specifically challenging an order that he pay $5,719 in reparation. The Electrical Workers Registration Board opposed the application. The appeal pertained to the proper construction of the Sentencing Act 2002 and the circumstances under which fresh evidence may be admitted on appeal. The Court of Appeal, consisting of Gilbert, Peters, and Hinton JJ, considered whether the proposed appeal involved a matter of general or public importance or if a miscarriage of justice might have occurred. The Court reasoned that neither ground for granting leave was satisfied, and thus declined the application. The Court found that the relevant statutory provisions were not in dispute and that the criteria for admitting fresh evidence on appeal were well established, focusing on the credibility, freshness, and cogency of the evidence. The Court also noted that even if the reparation order were reduced, the fine could be increased, and reparation might still be ordered for emotional harm. Consequently, the application for leave to bring a second appeal was declined.

Orders