Llewellyn William Burchell v The Queen

IN THE SUPREME COURT OF NEW ZEALAND

SC 95/2011
SC 100/2011
[2011] NZSC 142

LLEWELLYN WILLIAM BURCHELL

THE QUEEN

Court: Blanchard, McGrath and William Young JJ

Counsel: Applicant in Person
P D Marshall (SC 95/2011) and A M Toohey (SC 100/2011) for Crown

Judgment: 24 November 2011

JUDGMENT OF THE COURT

The applications for leave to appeal out of time are both dismissed.

REASONS

We decline leave on the same basis on each application, namely that the appeal against conviction is long out of time (the delay not being explained) and would in any event not meet the leave criteria, as essentially Mr Burchell is trying to re-litigate the particular facts which were reviewed in detail by the Court of Appeal in dismissing each appeal.[1]
[1] Burchell v R [2010] NZCA 314 and Burchell v R [2010] NZCA 311.
In SC 95/2011 he seeks to raise for the first time an argument that the transcript does not show that the jury actually delivered a verdict. This argument has no prospect of success in the face of the absence of any objection to the entering of conviction from trial counsel, Mr Burchell’s acknowledgment at sentencing that he had been found guilty and the Judge’s reference at that time to the fact that the jury had delivered a verdict.[2]
[2] R v Burchell DC Auckland CRI-2006-044-5625, 6 March 2008 at [6].
Both applications are plainly without merit and leave to appeal out of time is declined in both cases.
There are also applications in relation to the sentences, but as both have been served this Court consequently has no jurisdiction: s 383A(3) of the Crimes Act 1961.

Solicitors:
Crown Law Office, Wellington

CaseChat Overview and Summary

Llewellyn William Burchell brought two applications for leave to appeal out of time against his conviction and sentence before the Supreme Court of New Zealand. The Court dismissed both applications. Burchell had previously appealed his conviction and sentence to the Court of Appeal, which dismissed his appeals. The Supreme Court found that the applications were out of time and lacked merit. Burchell argued that the transcript did not show that the jury delivered a verdict, but this argument was rejected because there was no objection to the conviction at trial, Burchell acknowledged his guilt at sentencing, and the judge referred to the jury's verdict. The Court also noted that it had no jurisdiction to hear appeals relating to Burchell's sentence, as he had already served it.

The legal issues in this case were whether Burchell's appeals were out of time and whether they had any merit. The Court found that the appeals were out of time and lacked merit because Burchell was attempting to re-litigate facts that had already been reviewed by the Court of Appeal. The Court also found that it had no jurisdiction to hear appeals relating to Burchell's sentence, as he had already served it. The Court declined leave to appeal out of time in both cases.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established