Jones v R - [2014] NZSC 85

IN THE SUPREME COURT OF NEW ZEALAND

SC 128/2013
[2014] NZSC 85

BETWEEN	TERRY JONES Applicant
AND	THE QUEEN Respondent

SC 27/2014
BETWEEN	MARK LEE Applicant
AND	THE QUEEN Respondent

Hearing:	3 April 2014
Court:	Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ
Counsel:	R M Lithgow QC, A J D Bamford and N Levy for the Applicant Jones G J X McCoy and K J McCoy for the Applicant Lee A Markham and A R van Echten for the Respondents
Judgment:	4 July 2014

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.

____________________________________________________________________

REASONS

(Given by McGrath J)

When a Judge discharges an accused under s 347 of the Crimes Act 1961, or stays a prosecution, the prosecutor may under s 381A apply to the Judge to refer to the Court of Appeal a question of law arising from the Judge’s direction. The applicants, Mr Jones and Mr Lee, seek leave to appeal against the judgment of the Court of Appeal allowing a Crown appeal on such a reference and directing that their trial proceed. This judgment addresses whether the Supreme Court has jurisdiction to entertain such a pre-trial appeal against the Court of Appeal’s decision.

Background

Following an undercover investigation of the Red Devils Motorcycle Club in Nelson, the police laid 151 charges against 21 defendants. Ten members of the gang faced charges of participation in an organised criminal group. Other charges concerned offences related to supply of methamphetamine or other drugs, of conspiracy to cause grievous bodily harm and of threatening to kill, and other offences under both the Crimes Act and the Arms Act 1983.
In the course of the investigation, two undercover police officers infiltrated the Club. When suspicion developed about one of them, the police took steps to strengthen his credibility. A fake search warrant, which on its face appeared to have been issued by a court official, was prepared and “executed”. The police also prepared and filed criminal proceedings, involving fake charges, against the undercover officer, who was arrested and appeared in court.
Once these events became known, those charged applied to the High Court for a stay of all charges following on from the investigation on the ground that they were so contrary to proper and acceptable police practice that they amounted to an abuse of the courts’ process.
In the High Court, Simon France J held that the police conduct raised abuse of process concerns to the extent that it was necessary for the Court to stay the proceedings against all accused.[1] On the application of the prosecutor, the Judge referred a question for the opinion of the Court of Appeal under s 381A:
Was I wrong to stay all prosecutions of twenty-one accused in relation to charges fairly said to flow from the Operation Explorer investigation?
[1]R v Antonievic [2012] NZHC 2686.
The Court of Appeal decided that the High Court Judge had wrongly focused on the fact that the police misconduct constituted…

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 Jones v R

Details

AGLC: Jones v The Queen [2014] NZSC 85
Case: [2014] NZSC 85
Decision Date: 4 July 2014

CaseChat Overview and Summary

In the matter of Jones v R, the appellant sought leave to appeal from a decision of the Court of Appeal, which had overturned a decision of the Supreme Court discharging the appellant on a question of law. The Crown had appealed to the Court of Appeal under s 381A of the Crimes Act 1961, which provides for a prosecutor’s appeal to the Court of Appeal against a discharge or stay of prosecution. The appellant now sought to appeal to the Supreme Court from the Court of Appeal’s decision, contending that s 10 of the Supreme Court Act 2003 confers jurisdiction on the Supreme Court to hear such appeals. The Crown argued that the Supreme Court had no jurisdiction to hear such an appeal as the relevant statutory provisions did not expressly provide for an appeal from the Court of Appeal’s decision.

The legal issue before the court was whether s 10 of the Supreme Court Act 2003 conferred on the Supreme Court the jurisdiction to hear an appeal from a decision of the Court of Appeal on a question of law arising out of a discharge or stay of prosecution. The court had to determine the proper interpretation of s 10 in light of the Crown’s submission that jurisdiction is only conferred where expressly authorised by the statutory provisions listed in s 10 and the appellant’s contention that s 10 confers jurisdiction to hear any appeal that the Court of Appeal has jurisdiction to hear. The court also had to consider the symmetry of the statutory provisions and whether the absence of an express right of appeal by the accused could be reconciled with the statutory scheme.

The court found that s 10 of the Supreme Court Act 2003 did not confer jurisdiction on the Supreme Court to hear an appeal from the Court of Appeal’s decision on a question of law arising out of a discharge or stay of prosecution. The court held that the statutory language “authorised by” indicated that jurisdiction to appeal to the Supreme Court is found only in the specific legislative provisions listed in s 10. The court rejected the appellant’s argument that s 10 conferred jurisdiction to hear any appeal that the Court of Appeal had jurisdiction to hear, noting that the statutory provisions did not expressly provide for such an appeal. The court also found that the absence of an express right of appeal for the accused was not inconsistent with the statutory scheme, as the Crown’s right to appeal under s 381A was sufficient to provide a check on the discharge or stay of prosecution. The court concluded that it had no jurisdiction to grant leave to appeal against the judgment of the Court of Appeal.

The court accordingly dismissed the appellant’s application for leave to appeal from the judgment of the Court of Appeal. The appellant’s appeal was dismissed with costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 10 of the Supreme Court Act 2003 sets out this Court’s jurisdiction to hear and determine appeals in criminal proceedings. The applicable form of the provision states:10 Appeals against decisions in criminal proceedings The Supreme Court can hear and determine appeals authorised by— (a) Part 13 or section 406A of the Crimes Act 1961; or (b) section 144A of the Summary Proceedings Act 1957; or (c) section 10 or 10A of the Court Martial Appeals Act 1953. As indicated, the Crown’s appeal to the Court of Appeal was brought under s 381A, which appeared in Part 13 of the Crimes Act,[3] and provides:381AQuestion of law arising out of discharge under section 347 or stay of prosecution may be referred to Court of Appeal(1)A Judge who directs that an accused be discharged under section 347 or for any reason that a prosecution be stayed may, on the application of the prosecutor, refer for the opinion of the Court of Appeal any question of law arising out of that direction.(2)The prosecutor must apply as soon as reasonably practicable after the Judge gives his or her reasons for the direction, and in no case later than 10 days after the reasons for the direction are given.(3)When a question is referred to the Court of Appeal, the accused who has been discharged or whose prosecution has been stayed is subject to again being arrested or summoned to appear if the Court of Appeal orders a new trial.…[3]Part 13 has since been repealed, and replaced by Part 6 of the Criminal Procedure Act 2011. Consequential amendments were also made by that Act to s 10 of the Supreme Court Act 2003. There is a lack of symmetry in the expression of s 381A, which permits a prosecutor’s appeal to the Court of Appeal but not one by an accused. As well, read literally, neither party is given an express right to appeal to this Court against a Court of Appeal judgment on a question of law relating to a stay direction or discharge of the accused under s 347.[4] The applicants’ position on the preliminary question is that s 10 gives this Court jurisdiction to hear an appeal by the accused, with the Court’s leave. They submit that s 10 was intended to confer on this Court jurisdiction to hear any appeal that, under Part 13, the Court of Appeal has jurisdiction to hear. The Crown submits that s 10 only confers jurisdiction in respect of appeals that are authorised by the statutory provisions listed in the subparagraphs of s 10, in this case Part 13 of the Crimes Act. While s 381A appears in Part 13 it does not expressly authorise a further appeal by either party from the Court of Appeal’s decision on a referred question of law nor is it suggested that any other provision does so. All appellate jurisdiction, including that of the Supreme Court, is statutory. This Court is accordingly unable to grant any application for leave to appeal against the judgment of the Court of Appeal, or other court, unless it is satisfied it has statutory jurisdiction to do so. Section 10 of the Supreme Court Act is the starting point. It provides that the Court has jurisdiction to hear and determine appeals “authorised by” Part 13 of the Crimes Act, and certain other legislation.[5] The natural meaning of the words “authorised by” is that authority for appeals to the Supreme Court is found in the legislative provisions stipulated in s 10.[5]Under s 12 of the Supreme Court Act 2003, all such appeals require the Court’s leave and references in other enactments are read subject to the Supreme Court Act’s provision concerning leave.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.