Mitchell v Police - [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.

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REASONS OF THE COURT

(Given by Moore J)

Introduction

The appellant, Neville Morgan Mitchell, was convicted of assault following a judge-alone trial in May 2018.
He appealed his conviction and sentence but failed to meet various timetabling directions requiring him to file his grounds of appeal.
In the High Court, his appeals were dismissed for procedural non-compliance under s 338 of the Criminal Procedure Act 2011 (CPA).[1]
[1]Mitchell v Police [2019] NZHC 178 at [47].
Mr Mitchell seeks leave to appeal that decision.[2] This is opposed by the Crown.
[2]Criminal Procedure Act 2011, s 339(1)
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).

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.
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.
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].
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

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 Mitchell v Police

Details

AGLC: Mitchell v Police [2019] NZCA 497
Case: [2019] NZCA 497
Decision Date: 16 October 2019 at 2.30 pm

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