Mathers v Police - [2018] NZHC 1408

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-190

[2018] NZHC 1408

BETWEEN
ZOE MATHERS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 June 2018

Appearances:

L Smith (on behalf of A S Bloem) for Appellant R McCoubrey for Respondent

Judgment:

13 June 2018

JUDGMENT OF LANG J

[on application for appeal against conviction to be heard prior to sentencing of appellant]

This judgment was delivered by me on 13 June 2018 at 4.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

MATHERS v NEW ZEALAND POLICE [2018] NZHC 1408 [13 June 2018]

[1] Following a Judge alone trial in the District Court Ms Mathers was convicted on two charges of burglary in a decision delivered by Judge Manuel on 17 May 2018. The Judge remanded Ms Mathers on bail for sentence on 20 July 2018.

[2] Ms Mathers has now filed an appeal against conviction. She asks this Court to hear the appeal against conviction before she is sentenced in the District Court.

Background

[3] The burglary charges related to two occasions during April 2017 on which Ms Mathers is alleged to have entered her parents’ home and stolen items. The prosecution alleged that at some stage between 14 and 24 April 2017 Ms Mathers entered her parents’ home and stole a car key, an Apple iPhone and a Samsung cellphone. Then, on 27 April 2017, she is alleged to have returned to her parents’ home and stolen a cheque book, an iPad and $10,000 in cash.

[4] Neither the notes of evidence from the hearing in the District Court nor the Judge’s decision are available at this stage. The present application arises out of the prosecution’s allegation that Ms Mathers stole the sum of $10,000 in cash from her parents’ home when she entered the address on 27 April 2017.

[5] As counsel for Ms Mathers explains the situation, the evidence at the hearing was to the effect that Ms Mathers’ parents had hidden $10,000 in cash under the mattress of their bed. When they checked under the mattress after they returned home on or shortly after 27 April 2017, however, the cash was missing.

[6] It now transpires that Ms Mathers’ parents have found the cash. It was apparently hidden under the mattress but in the middle of the bed. They believed it was missing when they laid their complaint with the police because they had not made a full check of the area under the mattress.

Jurisdiction

[7]Section 231 of the Criminal Procedure Act 2011 (the Act) provides as follows:

231 How to commence first appeal

(1)A convicted person commences a first appeal under this subpart by filing in the first…

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 Mathers v Police

Details

AGLC: Mathers v Police [2018] NZHC 1408
Case: [2018] NZHC 1408
Decision Date: 13 June 2018

CaseChat Overview and Summary

Zoe Mathers, the appellant, sought an order from the High Court of New Zealand to hear her appeal against her conviction prior to her sentencing in the District Court. Ms Mathers was convicted on two charges of burglary related to two occasions during April 2017, where she allegedly entered her parents' home and stole various items. The primary legal issue was whether the appeal against conviction should be heard before sentencing, in light of the fact that Ms Mathers' parents had found the stolen cash, which was one of the items she was accused of stealing. The court considered the provisions of the Criminal Procedure Act 2011, which did not expressly require sentencing to take place before the appeal against conviction. The court noted that it is usually appropriate for an appeal against conviction to be heard after sentencing, but there may be exceptional circumstances where it is appropriate to determine the appeal beforehand.

The court concluded that it would not be appropriate in the circumstances of the present case to direct the appeal against conviction to be heard before Ms Mathers was sentenced. The fact that the stolen cash had been found did not necessarily mean that Ms Mathers had an unanswerable defence to the second burglary charge. The court was still able to convict her if it was satisfied beyond reasonable doubt that she intended to steal property when she entered the property. The court directed that the appeal against conviction would be heard after Ms Mathers was sentenced in the District Court on 20 July 2018, and the appeal would be listed for mention in the criminal appeals callover at 9 am on Friday 27 July 2018. If Ms Mathers wished to continue with the appeal, a fixture would be allocated on 6 August 2018 at 10 am, with one and a half hours allocated. The court also directed that the Registrar was to obtain a transcript of both the evidence given at the hearing in the District Court and the Judge’s decision.

Orders