McLean v Police - [2023] NZHC 330

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-435

[2023] NZHC 330

BETWEEN
GRANT (G-MANN) MCLEAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 February 2023

Appearances:

P K Hamlin and A Harold for Appellant A Devathasan for Respondent

Judgment:

28 February 2023

JUDGMENT OF LANG J

[on appeal against pre-trial decisions]

Solicitors:
Kayes Fletcher Walker, Manukau

MCLEAN v NEW ZEALAND POLICE [2023] NZHC 330 [28 February 2023]

[1] Mr McLean entered guilty pleas in the District Court to eight charges of dishonestly using a document to obtain property.1 He did so after pursuing two unsuccessful applications for discharge under s 147 of the Criminal Procedure Act 2011 (CPA). Mr McLean has not yet been convicted or sentenced on the charges but now seeks to appeal against those decisions under s 296 of the CPA.

Background

[2] The charges were laid after Mr McLean forwarded eight application forms to the Department of Internal Affairs seeking to obtain copies of birth records or certificates of named persons. Two of these application forms were to obtain copies of birth records or certificates of District Court Judges, another was of a Minister of the Crown and the remainder held various positions in commerce or the Public Service. In each case Mr McLean used a pseudonym to obtain the information that he sought.

[3] In seven cases the Department sent Mr McLean an email with a copy of the birth certificate or record he had requested attached as a digital file. In the remaining case it sent him a paper certificate by post.

[4] The issue that Mr McLean asks the Court to determine in the present appeal is whether the provision of this information resulted in Mr McLean obtaining property in terms of s 228 of the Crimes Act 1961.

Procedural background

[5] Mr McLean initially elected trial by jury. He then filed an application for discharge under s 147 of the CPA. Judge Grau heard the application on 30 April 2021 and dismissed it in an oral decision delivered on the same date.2

[6] Mr McLean sought leave to appeal against the Judge’s decision. On 7 October 2021 the Court of Appeal dismissed the application on the basis that it had no

1 Crimes Act 1961, s 228(1)(a).
2 R v McLean [2021] NZDC 12611.

jurisdiction to determine a pre-trial appeal against the refusal of a Judge to discharge a defendant under s 147.3

[7] Mr McLean then sought judicial review of Judge Grau’s decision. Harvey J dismissed this application in a judgment delivered on 15 September 2022.4 Harvey J did not consider it was imperative for the High Court to intervene prior to the trial. He considered the issues Mr McLean had raised would more appropriately be determined at trial and, if necessary, on an appeal against conviction.5

[8] The trial was scheduled to commence on 4 October 2022. On that date Mr McLean renewed his application for discharge under s…

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 McLean v Police

Details

AGLC: McLean v Police [2023] NZHC 330
Case: [2023] NZHC 330
Decision Date: 28 February 2023

CaseChat Overview and Summary

In McLean v Police, the High Court of New Zealand was tasked with determining whether the appellant, Grant (G-Mann) McLean, had the right to appeal two pre-trial decisions that dismissed his applications for discharge under section 147 of the Criminal Procedure Act 2011. McLean faced charges of dishonestly using a document to obtain property, specifically birth records or certificates of named persons, using pseudonyms. Despite two unsuccessful attempts to have the charges dismissed, McLean entered guilty pleas and now seeks to appeal the pre-trial decisions.

The court had to decide whether section 296 of the CPA provided McLean with a right to appeal the dismissals of his applications for discharge under section 147. Section 296 allows for appeals on questions of law against trial court rulings, but it is well established that it does not provide defendants with a corresponding right to appeal when such applications are dismissed. This principle was affirmed in various cases, including D (CA 716/2015) v R and Rowell v Commissioner of Inland Revenue, where the Court of Appeal made clear that the right to appeal under section 296 applies only when a stay or dismissal has been granted, not when an application for discharge is refused.

The court found that McLean's appeal must be dismissed for lack of jurisdiction. The decisions he sought to challenge did not determine the proceeding but merely held that the charges would proceed to trial, which subsequently concluded with his guilty pleas. The court's ruling underscores that the dismissal of an application for discharge under section 147 does not invoke the jurisdiction for appeal under section 296, as it merely continues the prosecution process. Consequently, McLean's appeal was dismissed, affirming the jurisdictional limitations set forth in the relevant statutes and case law.

Orders