McGregor v The Queen - [2019] NZCA 589

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA349/2019
[2019] NZCA 589

BETWEEN	DAVID GILES MCGREGOR Applicant
AND	THE QUEEN Respondent

Court:	Kόs P, Venning and Thomas JJ
Counsel:	S J Zindel for Applicant J E Mildenhall for Respondent
Judgment: (On the papers)	27 November 2019 at 10 am

JUDGMENT OF THE COURT

AThe application for extension of time to seek leave to appeal is granted.
BThe application for leave to bring a second appeal against conviction is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

David Giles McGregor was charged with breaching a protection order arising out of events which occurred on 8 December 2017. On two occasions he unsuccessfully applied for the charge to be dismissed.[1] He was convicted following a Judge-alone trial before Judge Zohrab in the District Court on 4 December 2018.[2] His appeal against conviction was dismissed by Churchman J in the High Court on 15 May 2019.[3] He now seeks leave from this Court to bring a second appeal against conviction.
[1]Under the Criminal Procedure Act 2011, s 147.
[2]R v McGregor [2019] NZDC 27067 [District Court judgment].
[3]McGregor v R [2019] NZHC 1069, [2019] NZFLR 35 [High Court judgment].
Mr McGregor’s notice of appeal was filed out of time for reasons that are adequately explained. The Crown does not object to an extension. We accordingly grant the application for an extension of time for his application for leave to appeal.

Background

Facts

Mr McGregor became the subject of a final protection order issued by the Family Court at Nelson on 16 May 2017 following what the complainant described as a “hostile” and “toxic” nine to 10 month relationship that she said resulted in “four years of absolute hell”.
On the evening of 8 December 2017, the complainant was sitting outside at a bar with friends when she said she made eye contact with Mr McGregor. She said her “heart sank” when she saw him, and his mere presence had an immediate impact on her. The complainant accepted this was an entirely random meeting and there was no intimidatory behaviour at this stage. However, after making eye contact, Mr McGregor went inside, ordered a drink, and came back outside. He sat at a table facing the complainant. She said he “chose once again to sit close to me and intimidate me” and that he could have chosen anywhere else to sit.[4] Mr McGregor denied moving closer to her and said she moved directly behind him with her friends. In the end, the complainant felt so uncomfortable, she left.
[4]District Court judgment, above n 2, at [14].
The complainant and her friends went to another bar. She was starting to feel more relaxed when Mr McGregor walked in and sat at a table nearby. Mr McGregor says he was there first and she sat near him. After about a minute, she left. There was no physical or verbal interaction between them.
Mr McGregor was…

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.

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Details

Case: [2019] NZCA 589
Decision Date: 27 November 2019 at 10 am

CaseChat Overview and Summary

In the case of McGregor v The Queen, the Court of Appeal of New Zealand considered an application by David Giles McGregor for an extension of time to seek leave to appeal and for leave to bring a second appeal against his conviction for breaching a protection order. McGregor had previously appealed against his conviction to the High Court, which was dismissed. The key legal issues were whether the application for an extension of time should be granted, and whether leave to bring a second appeal should be granted under the Criminal Procedure Act 2011. McGregor argued that the police's failure to obtain CCTV footage from the bars denied him a fair trial and that the evidence was insufficient to support the conviction.

The Court found that while McGregor's notice of appeal was filed out of time, the reasons were adequately explained and the Crown did not object to an extension. Therefore, the application for an extension of time was granted. Regarding the leave to bring a second appeal, the Court concluded that the application did not involve a matter of general or public importance and did not meet the threshold for a potential miscarriage of justice. The factual findings made by the District Court and upheld by the High Court were deemed appropriate, and the Court was not in a position to interfere with those findings.

The Court ultimately granted the application for an extension of time to seek leave to appeal but declined the application for leave to bring a second appeal against the conviction. The Court emphasised that the threshold for leave to bring a second appeal is high and that it was not appropriate to grant leave in this case given the fact-specific nature of the appeal and the concurrent findings of fact from the previous decisions.

Orders