McManus v Police HC Nelson CRI-2011-442-38

[2011] NZHC 1972

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2011-442-38

CRI-2011-442-39

BETWEEN  SHANE BERNARD MCMANUS Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 December 2011

Counsel:         S E England for Appellant

M A O'Donoghue for Respondent

Judgment:      8 December 2011

JUDGMENT OF MILLER J

[1]      Mr  McManus  appeals  against  his  sentence  of  20  months  imprisonment imposed on two counts of driving with excess breath alcohol, being third or subsequent offences.   They were committed on 1 January and 2 April 2011.   The second was committed while he was on bail for the first.

[2]      Mr  McManus  eventually  pleaded  guilty  to  both  charges,  but  not  before electing trial on the first one.  He was committed for trial, but pleaded guilty having advised the District Court of his intention to do so by letter of 19 August 2011.  He pleaded guilty to the 2 April offence on the day of sentencing.

[3]      Two appeals were filed, one for each conviction.   The first was filed with respect to the 2 April 2011 offence, and it was in the form appropriate to an appeal to the Court of Appeal.   The other was filed in the High Court under s 116 of the Summary Proceedings Act 1957.

[4]      The  initial  question  is  one  of  jurisdiction.    Mr  McManus  having  been committed for trial on the 1 January 2011 offence, his guilty plea must have been

SHANE BERNARD MCMANUS V NEW ZEALAND POLICE HC NEL CRI-2011-442-38 8 December 2011

entered pursuant to s 321 of the Crimes Act 1961, and he is deemed to have been convicted on indictment;  s 3(d) Crimes Act 1961.  That being so, he must appeal under s 383 of the Crimes Act 1961 to the Court of Appeal.  As a matter of practice, it appears that where the offender was sentenced at the time on a summary matter, that too should be dealt with by the Court of Appeal.[1]

[1] Adams on Criminal Law at [SA115.14].

[5]      This  Court  being  without  jurisdiction,  the  appeal  must  be  dismissed. However, the registry should ensure that the notices of appeal are filed in the Court of Appeal.

Miller J

Solicitors:

Hunter Ralfe, Nelson for Appellant

Crown Solicitor’s Office, Nelson for Respondent