Mitchell v Police

Case [2019] NZCA 497


IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA210/2019
 [2019] NZCA 497

BETWEEN

NEVILLE MORGAN MITCHELL
Appellant

AND

NEW ZEALAND POLICE
Respondent

Hearing:

29 July 2019

Court:

French, Mallon and Moore JJ

Counsel:

T Aickin for Appellant
A J Ewing for Respondent

Judgment:

16 October 2019 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time for filing the leave application is granted.

BThe application for leave to appeal is granted.

CThe appeal is allowed.  The decision of the High Court is quashed for want of jurisdiction.

DThe matter is remitted back to the High Court for reconsideration.

EThe High Court is directed to reconsider whether the appellant’s appeal in that Court should be dismissed for non-compliance with procedural orders under s 338 of the Criminal Procedure Act 2011, in light of the matters set out in this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

  1. The appellant, Neville Morgan Mitchell, was convicted of assault following a judge-alone trial in May 2018. 

  2. He appealed his conviction and sentence but failed to meet various timetabling directions requiring him to file his grounds of appeal. 

  3. In the High Court, his appeals were dismissed for procedural non-compliance under s 338 of the Criminal Procedure Act 2011 (CPA).[1] 

  4. Mr Mitchell seeks leave to appeal that decision.[2]  This is opposed by the Crown. 

    [2]Criminal Procedure Act 2011, s 339(1)

  5. Because Mr Mitchell’s application for leave was filed out of time he requires an extension of time for filing.[3]  Given the circumstances we grant the extension.

The conviction

[3]Section 339(5).

  1. It is alleged that on 8 June 2017 Mr Mitchell went to a physiotherapy clinic in Wānaka to make a complaint against one of the staff.  The owner of the practice invited him into the tearoom to talk.  Things apparently became heated.  A physiotherapist, Mr Jenkins, attempted to escort Mr Mitchell out of the building.  Mr Mitchell allegedly pushed Mr Jenkins three times.  On the last occasion it is said the push was sufficiently hard to cause Mr Jenkins to lose his balance.  The police were called.

  2. Mr Mitchell was interviewed by the police and the interview was recorded on DVD.  He admitted pushing Mr Jenkins but said Mr Jenkins had been using stand over tactics like a bouncer.  Mr Mitchell was charged with common assault.[4]

    [4]Summary Offences Act 1981, s 9; the maximum penalty is six months’ imprisonment or a fine not exceeding $4,000.

  3. At the judge-alone trial before Judge Garland in the Queenstown District Court, staff from the physiotherapist’s clinic gave evidence.[5]  Mr Mitchell elected not to give or call evidence.[6]  However, the DVD of his interview with the police was played.[7] 

    [5]Police v Mitchell [2018] NZDC 14582 at [4] and [12].

    [6]At [28].

    [7]At [22].

  4. On 9 May 2018 the Judge convicted Mr Mitchell,[8] and sentenced him to 40 hours’ community work and nine months’ supervision.[9]

Procedural background

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Mitchell v Police [2019] NZCA 497
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[2019] NZCA 497
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CaseChat Overview and Summary

In the case of Mitchell v Police, the appellant, Neville Morgan Mitchell, challenged the High Court's dismissal of his appeal against his conviction and sentence for assault. The court was required to decide whether the High Court had jurisdiction to dismiss the appellant's appeal under section 338 of the Criminal Procedure Act 2011 and whether the Court of Appeal should grant the appellant leave to appeal the High Court's decision. The Court of Appeal granted the appellant leave to appeal and allowed the appeal, holding that the High Court lacked jurisdiction to dismiss the appeal without a separate judicial consideration. The Court of Appeal quashed the High Court's decision and remitted the matter back to the High Court for reconsideration, directing the High Court to reconsider whether the appellant's appeal should be dismissed for non-compliance with procedural orders under section 338 of the CPA, in light of the matters set out in this judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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