Kerr v The Queen - [2005] NZCA 287

IN THE COURT OF APPEAL OF NEW ZEALAND
CA275/05
THE QUEEN
v
VONRICK CHRISFORD KERR
Hearing:24 November 2005

Court:Robertson, Baragwanath and Doogue JJ
Counsel:Appellant in person

E M Thomas for Crown

Judgment:25 November 2005

JUDGMENT OF THE COURT

APPLICATION FOR LEAVE TO APPEAL IS REFUSED.
____________________________________________________________________
REASONS
(Given by Robertson J)
[1]       This is to be treated as an application for leave to appeal from a judgment of Judge Behrens QC delivered in the District Court at Wellington on 8 August 2005 following a hearing on 20 July 2005. Mr Kerr had sought a discharge under s 347 of the Crimes Act 1961.
[2]       As a result of an incident which occurred on 28 February 2002 in the Southern Cross Tavern in Wellington, Mr Kerr faced one count of injuring with intent to injure. After a jury trial in the District Court at Wellington in March 2004, he was convicted and sentenced to a term of imprisonment.
[3]       He appealed to this Court and following a hearing on 30 September 2004 his appeal was allowed on 18 October 2004 when the new trial was ordered. There were various hearings during 2005, but the principal one raised by this appeal is the s 347 application delivered by Judge Behrens on 8 August 2005.
[4]       In the Crown submission of 8 November 2005 the point was taken that this was an appeal in respect of an application which had been heard prior to trial. The jurisdiction of the Court is accordingly covered by s 379A of the Crimes Act 1961.
[5]       Section 379A(1) provides:
(1) At any time before the trial, or as the case may require a later retrial, either the prosecutor or the accused person, with the leave of the court appealed to, may appeal to the Court of Appeal or the Supreme Court against any of the following orders (whether made in relation to the trial or a later retrial of charges), namely,— …

[6]       There then follows an identification of those situations in which an appeal is permitted.
[7]       Mr Kerr’s contention was that the use of the word “namely” suggested that there was a general discretionary right of appeal which included the matters which were thereafter identified.
[8]       In our judgment that is not what the words of the section say, and in fact we take the view that the inclusion of the word “namely” emphasises that it is these particular matters and no others in respect of which the jurisdiction is available.
[9]       A note by the learned authors of Adams on Criminal Law (looseleaf) is to this effect:
This section closely prescribes the matters which may be the subject of a pre-trial appeal, and the Courts have no jurisdiction to entertain pre-trial appeals on any other matters: McGrath v R [2005] NZSC 50; R v Livingston [2001] 1 NZLR 167; (2000) 18 CRNZ 162 (CA, at p 175; property 169-170; R v Coleman [1996] 2 NZLR 525; (1996) 13 CRNZ 663 (CA).…

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 Kerr v The Queen

Details

AGLC: Kerr v The Queen [2005] NZCA 287
Case: [2005] NZCA 287
Decision Date: 25 November 2005

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for leave to appeal against a decision made by Judge Behrens QC in the District Court at Wellington. The applicant, Vonrick Chrisford Kerr, sought a discharge under section 347 of the Crimes Act 1961, following his conviction for injuring with intent to injure in an incident that occurred in 2002. Kerr's initial appeal against his conviction was allowed, leading to a retrial. The primary legal issue in this case was whether the Court of Appeal had jurisdiction to hear Kerr's appeal against Judge Behrens' refusal of his s 347 application, which was heard prior to the retrial.

The Court considered whether section 379A of the Crimes Act 1961 provided for an appeal against the decision made by Judge Behrens. Section 379A allows for an appeal against certain pre-trial orders, but the Court held that the inclusion of the word "namely" in the statute indicated that only the specified matters were subject to appeal. The Court concluded that the statutory language did not support a general right of appeal and that the appeal was outside the scope of s 379A. The Court referred to previous cases and commentary that emphasised the narrow scope of pre-trial appeals and the importance of limiting such appeals to expedite the trial process.

Based on the reasoning above, the Court of Appeal held that it did not have jurisdiction to hear the appeal and therefore refused leave to appeal. The Court noted that Kerr could potentially appeal the decision through other means, such as a case stated under s 380 or a general appeal against conviction under s 383 or s 383A, but those options were not pursued in this instance.

Orders