McGrath v R - [2005] NZSC 50

IN THE SUPREME COURT OF NEW ZEALAND

SC 30 & 32/2005 [2005] NZSC 50

M AND F

v

THE QUEEN

Court: Gault J and Tipping J Counsel: K N Hampton QC for M
P H B Hall for F
B J Horsley and M D Downs for Crown

Judgment: 27 July 2005

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.

REASONS

[1] We find it convenient to deal with these two leave applications together as they involve the same point. An oral hearing is not necessary. The applicants are charged with a number of sexual offences said to have occurred between 1968 and
1977. They applied to the High Court for a discharge pursuant to s 347 of the
Crimes Act 1961 or alternatively for an order to the effect that all the evidence against them was “inadmissible” on the grounds of delay, abuse of process and the

M and F V R SC 30 & 32/2005 [27 July 2005]

risk they could not have a fair trial. Severance issues arose if the head applications failed.

[2] The applications were made under s 347 and ostensibly under s 344A of the Crimes Act. John Hansen J treated them as being effectively for the same relief; a discharge or a permanent stay. Save in the case of one complainant, the Judge dismissed the applications.

[3] The applicants then sought to appeal to the Court of Appeal pursuant to s 379A(1)(aa) of the Crimes Act. That appeal was adjourned sine die following the delivery by the Court of Appeal of its decision in R v Bailey.1 In that case the Court held that s 379A confers no jurisdiction to appeal an order made in the High Court, the effect of which is to refuse to grant or to grant a stay, or indeed a discharge, regardless of the precise form in which the relevant application may have been couched. The applicants now seek to appeal out of time directly from the High Court to this Court. They contend that the leapfrog procedure is justified because they wish to challenge the correctness of the decision of the Court of Appeal in Bailey which, if it be correct, stands directly in their way. We consider there is a fundamental problem with the application.

[4] Section 379A carefully defines the circumstances in which the Court of Appeal may give leave to appeal from a pre-trial ruling made in the trial Court. There is no general right of appeal in such cases nor indeed is there any general right to seek leave to appeal from a pre-trial ruling. One of the defined circumstances in which the Court of Appeal may give leave in a pre-trial case concerns the making or refusing by the trial Court of an order under s 344A. That section is concerned with the admissibility of “any particular evidence”. Section 344A(4) makes it clear that a pre-trial order or ruling of the Judge under the section can be…

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 McGrath v R

Details

AGLC: McGrath v R [2005] NZSC 50
Case: [2005] NZSC 50
Decision Date: 27 July 2005

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of McGrath v R (SC 30 & 32/2005 [2005] NZSC 50) involved the applicants, McGrath and F, who were charged with multiple sexual offences that allegedly occurred between 1968 and 1977. They sought a discharge under section 347 of the Crimes Act 1961 or an order declaring all evidence against them inadmissible due to alleged delays, abuse of process, and the risk of an unfair trial. The applicants' applications were initially heard by John Hansen J in the High Court, who dismissed the applications except in the case of one complainant. Subsequently, the applicants sought to appeal to the Court of Appeal, but their appeal was adjourned sine die following the Court of Appeal's decision in R v Bailey, which held that section 379A of the Crimes Act did not confer jurisdiction to appeal an order made in the High Court that refused to grant or grant a stay or discharge.

The legal issue before the Supreme Court was whether the applicants could appeal directly to the Court from the High Court's orders, bypassing the Court of Appeal. The applicants argued that the leapfrog procedure was justified because they wished to challenge the correctness of the Court of Appeal's decision in Bailey, which stood in their way. The Court found that the applicants' applications to the High Court did not concern the admissibility of evidence as defined in section 344A of the Crimes Act. Instead, the applications were focused on preventing any evidence from being led against the applicants and were based on abuse of process and fair trial considerations. Consequently, the Supreme Court held that it lacked jurisdiction to consider the proposed pre-trial appeal because it was not authorised by section 379A(1)(aa) of the Crimes Act or any other statutory provision. The Court concluded that the proposed appeal was not authorised by any of the provisions set out in section 10 of the Supreme Court Act 2003, and therefore, the applications for leave to appeal were dismissed in each case.

Orders