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 147. Judge McNaughton dismissed the application on the ground that there had been no material change of circumstances since the delivery of Judge Grau’s decision that would justify the application for discharge to be reconsidered.6 Judge McNaughton also indicated that, even if he had accepted there had been a change of circumstances, he would have decided the application in favour of the Crown.7

Jurisdiction

[9]    Before the hearing commenced, I raised with counsel a concern I held regarding the jurisdiction of the Court to determine the appeal. Section 296 of the CPA provides as follows:

296     Right of appeal

(1)This section applies if a person has been charged with an offence.

(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3)The question of law in a first appeal under this subpart must arise—

(a)in proceedings that relate to or follow the determination of the charge; or

3      McLean v R [2021] NZCA 516.

4      McLean v Manukau District Court [2022] NZHC 2370.

5 At [22].

6      R v McLean [2022] NZDC 24648.

7      At [12]-[15].

(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

(4)The question of law must not be one that—

(a)arises from a jury verdict; or

(b)arose before  the  trial and  has   already   been   decided  under subpart 2.

[10]   During the hearing I indicated that I would hear argument on the point of law that the appeal raises and attempt to determine it on the merits. However, I am now satisfied that I do not have jurisdiction to hear the appeal and that it must be dismissed on that basis. This flows from the fact that the two decisions Mr McLean seeks to challenge on appeal relate to the dismissal of his applications for discharge under s 147 of the CPA.

[11]   It is now well established that s 296 provides the prosecution with a right of appeal against a pre-trial decision to discharge a defendant under s 147. However, it is also well established that s 296 does not provide a defendant with a corresponding right to appeal on an issue of law when an application for discharge is dismissed. This is exemplified in the present case  by  the fact that the Court of Appeal  dismissed  Mr McLean’s appeal against Judge Grau’s decision.

[12]   The principle has been applied on numerous occasions beginning with the decision of the Court of Appeal in D (CA 716/2015) v R, in which the Court considered an appeal against a refusal to grant a discharge under s 322 of the Oranga Tamariki Act 1989.8 The Court observed:

[14]  Mr Shamy accepted that the reference in s 296(3)(b) to “the dismissal of the charge under s 147 or a stay of prosecution” was a reference to cases where a stay or dismissal has actually been granted by the trial court, not where, as in this case, it has been refused. In other words, the effect of the reference in s 296(3)(b) to dismissals and stays is the same as the old s 318A of the Crimes Act. It confers a right on the Crown to appeal a stay or discharge on a question of law because the effect of the stay or dismissal decision is to bring an end to the prosecution. In contrast, the refusal to grant a stay is not a “determination” of the proceeding. It is the opposite. It means the proceeding will continue.

8      D (CA716/2015 v R [2016] NZCA 190.

[13]   Subsequently, in Rowell v Commissioner of Inland Revenue, the Court of Appeal confirmed that the same principles applied to the dismissal of an application for discharge under s 147 of the CPA.9 In that case the Court observed:

[22] We decline Mr Rowell’s invitation to  reconsider the jurisdictional  ruling in D. We note Mr Rowell does not seek to distinguish D on the basis it was decided under the [Oranga Tamariki] Act rather than the Criminal Procedure Act. That is a responsible position to take. D is authority for the point there is no jurisdiction under s 296 for an appeal on a question of law against a decision refusing to dismiss a charge so it applies equally to s 147 of the Criminal Procedure Act.

[14]   In Lyttle v R the Court of Appeal indicated that there may be rare cases in which a defendant can show that the trial court’s decision has, effectively, resulted in a determination of the proceeding.10 However, that is not the position here because the decisions Mr McLean seeks to challenge held that the charges were to proceed to trial. The proceeding was subsequently determined by the entry of the guilty pleas.

[15]   Mr Hamlin, counsel for Mr McLean, relies upon the approach taken by the Court of Appeal in Kahia v R.11 In that case the trial judge had ruled that the appellant was unable to rely on a particular defence. The appellant then entered a guilty plea and filed an appeal to the Court of Appeal under s 296. No conviction was entered pending determination of the appeal. The Court of Appeal allowed the appeal and directed a new trial. That case is obviously significantly different to the present because it did not involve an appeal against the dismissal of an application for discharge under s 147. It is therefore of little precedential value.

Result

[16]The appeal is dismissed for want of jurisdiction.

Lang J

9      Rowell v Commissioner of Inland Revenue [2016] NZCA 471.

10     Lyttle v R [2019] NZCA 329, [2019] 3 NZLR 636 at [35](b).

11     Kahia v R [2019] NZCA 612.