Lincoln v Police

[2017] NZHC 1253

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2017-476-5 [2017] NZHC 2153

BETWEEN

RICHARD LINCOLN

Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing:	8 June 2017
Appearances:	M Starling for the Appellant A R McRae for the Crown
Judgment:	9 June 2017

JUDGMENT OF MANDER J

[1]      The appellant, Mr Richard Lincoln, seeks leave to appeal a ruling of Judge

Couch declining his application, pursuant to s 147 of the Criminal Procedure Act

2011 (the Act), to dismiss charges he faces under the Arms Act 1983.  He also seeks leave to appeal out of time.

[2]      It is not necessary to discuss the factual background that has given rise to those charges,  nor the merits of the reasons provided by the District  Court for dismissing Mr Lincoln’s s 147 applications because a fundamental issue arises as to whether this Court has jurisdiction to entertain the proposed appeal.

[3]      Section 296 of the Act provides as follows:

296     Right of appeal

(1)      This section applies if a person has been charged with an offence.

(2)       The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3)      The question of law in a first appeal under this subpart must arise—

LINCOLN v POLICE [2017] NZHC 2153 [9 June 2017]

(a)       in proceedings that relate to or follow the determination of the charge; or

(b)       in  the  determination  of  the  charge  (including,  without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

(4)      The question of law must not be one that—

(a)      arises from a jury verdict; or

(b)       arose before the trial and has already been decided under subpart 2.

[4]      In D v R and Rowell v Commissioner of Inland Revenue, the Court of Appeal held that while an appeal can be filed on a question of law arising from the dismissal of a charge under s 147 or from a stay of prosecution, subs (3)(b) does not provide jurisdiction for a defendant to appeal against the Court’s decision not to dismiss the charge or grant a stay.1   This interpretation of the provision accords with the position prior to the enactment of the Act whereby the prosecution was permitted to appeal on a question of law arising from the making of an order that had the effect of terminating the prosecution.2

[5]      A  District   Court’s   decision   declining   to   dismiss   a  charge  is   not   a determination of the charge for the purposes of subs 3(b) because it does not have the effect of bringing the prosecution to an end.3   Nor is it a decision that “relates to” the determination of a charge under subs 3(a).4

[6]      The Court of Appeal held in D v R that while other pre-trial decisions may be appealed under subs 3(a), a decision not to terminate a prosecution does not affect how a trial is to be conducted, and an alternative remedy is available by way of an appeal against conviction after trial.  The Court of Appeal further observed that there was no indication Parliament intended to make such a major change to the scope of

existing appeal rights by the enactment of s 296.5

1      D (CA716/215) v R [2016] NZCA 190; Rowell v Commissioner of Inland Revenue [2016] NZCA

471 at [22].

2      Summary Proceedings Act 1957, s 107; Crimes Act 1961, s 381A.

3      D (CA716/215) v R, above n 1, at [14].

4 At [23].

5      At [18]-[22].

[7]      In Rowell the Court of Appeal observed that D v R is authoritative that there is no jurisdiction under s 296 for an appeal on a question of law against a decision refusing to dismiss charges.6    I am bound by the approach taken by the Court of Appeal.  It is not necessary for me to address Mr Lincoln’s application to appeal out of time.

[8]      The application for leave to appeal under s 296 of the Criminal Procedure Act is declined for want of jurisdiction.

Solicitors:

M Starling Barrister, Christchurch

Crown Solicitor, Timaru

6      Rowell v Commissioner of Inland Revenue [2016] NZCA 471 at [5].