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). Matters falling outside the terms of s 379A may be the subject of an appeal by way of case stated under s 380 or a general appeal against conviction under s 383 or s 383A.

[10]     In R v Coleman at 527-8, Henry J for this Court explained the rationale behind the restriction of pre-trial rights of appeal:

There are good reasons for confining the availability of s 379A and restricting appeals against pre-trial rulings.  The importance of trials being processed expeditiously is now well recognised.  The achievement of that aim is not helped by the proliferation of pre-trial applications, sometimes not designed to that end, and the need to accommodate subsequent appeals if the intermediate right to appeal is generally available.  Further, issues which are not within the strict confines of s 379A may well require an assessment of fairness and overall justice which can best be undertaken in the context of a trial.  Section 379A has no doubt been drafted carefully so as to avoid its very purpose being frustrated.  Any accused person … has the protection of appeal rights under s 383 and possibly s 380 whereby all issues now raised can if appropriate be fully considered.

[11]     The case stated procedure under s 380 does not have application here and there has not been a trial or conviction to enable appeal under s 383, and s 383A applies to appeals from this Court to the Supreme Court.

[12]     In written submissions Mr Kerr referred to a further s 347 application he had made to Judge Behrens which was refused on 10 October 2005.  There is no formal notice of appeal although a document was filed suggesting a variation to the original appeal to include this also.  Whether that is satisfactory need not be decided, as the same issue of jurisdiction will apply.

[13]     This Court lacks jurisdiction and leave to appeal is refused.

Solicitors:
Crown Law Office, Wellington