Lincoln v Police - [2023] NZHC 3084

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-136

[2023] NZHC 3084

BETWEEN
RICHARD LINCOLN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 September and 11 October 2023

Counsel:

Appellant in person

R D Smith for the Respondent

Judgment:

1 November 2023

JUDGMENT OF HARLAND J

[1] Mr Lincoln applies for leave to appeal a decision of the Christchurch District Court made on 4 July 2023 purportedly refusing to make an order of disclosure in relation to a charge of intimidation the Police have laid against him which is currently before that Court and which he denies. The ground of the appeal is that the District Court unreasonably and unlawfully refused to make an order of disclosure following an application made by Mr Lincoln for certain disclosure he submits he requires to properly prepare for trial. His application was filed on 9 January 2023. Mr Lincoln seeks an order directing the District Court to make the disclosure sought in his application. He also seeks indemnity costs against the Police.

[2] The application for leave to appeal is opposed. Both Mr Lincoln and Mr Smith, counsel for the Police, agree that the end result both seek is for Mr Lincoln’s application for disclosure to be remitted to the District Court to be determined. This

LINCOLN v POLICE [2023] NZHC 3084 [1 November 2023]

includes further disclosure sought by Mr Lincoln in his updated memorandum of 27 September 2023.

[3] I have decided not to grant Mr Lincoln leave to appeal for the reasons outlined below.

Background

[4] Mr Lincoln faces one charge of intimidation laid under s 21(1)(e) of the Summary Offences Act 1981. The alleged offending occurred on 21 February 2022 when he was attending the hearing of a charge laid against him of assault with a weapon. This charge was subsequently dismissed. The complainant in the charge he now faces was the officer in charge in that case.

[5] Mr Lincoln has entered a not guilty plea to the charge but a substantive hearing date in respect of it has not yet been allocated as the pre-trial procedures under the Criminal Disclosure Act 2008 (the Act) and the Criminal Procedure Act 2011 (CPA) are still in train.

[6] On 4 July 2023, the matter came before Judge M J Callaghan for a case review hearing. Mr Power appeared as counsel for the Police. The Judge issued a minute. In it he recorded that:

(a) Mr Lincoln had asked for the particulars relied on by the Police to support the allegation that his conduct was reasonably likely to frighten the complainant, but he noted that Mr Lincoln had not received any particulars;

(b) as counsel then appearing for the Police had not had the opportunity to obtain instructions about the particulars sought, the Judge directed that the Crown serve and file the particulars it relied on by 21 July 2023;

(c) a fixture with a nominal date of 29 August 2023…

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 Lincoln v Police

Details

AGLC: Lincoln v Police [2023] NZHC 3084
Case: [2023] NZHC 3084
Decision Date: 1 November 2023

CaseChat Overview and Summary

Richard Lincoln applied for leave to appeal a decision of the Christchurch District Court, which he claims unreasonably and unlawfully refused to make an order of disclosure in relation to a charge of intimidation laid against him. The Christchurch District Court had directed the Crown to provide particulars to Mr Lincoln by a certain date and set a nominal date for the hearing, but did not address Mr Lincoln's application for disclosure. Mr Lincoln sought leave to appeal on the basis that the District Court had failed to make a decision on his application for disclosure. The legal issue in this case was whether the District Court made a decision on Mr Lincoln's application for disclosure. If the Court had not made a decision, there would be no grounds for granting leave to appeal. The court held that the District Court did not make a decision on Mr Lincoln's application for disclosure, and therefore, leave to appeal could not be granted. The matter was remitted back to the District Court for Mr Lincoln's application for disclosure to be advanced. The court emphasised the importance of ensuring that all issues are properly addressed in court, particularly in cases involving disclosure applications. The application for leave to appeal was dismissed.
Final orders:
(1) The application for leave to appeal is dismissed.
(2) The matter is remitted back to the District Court for Mr Lincoln's application for disclosure to be advanced.

Orders