Mitchell v Police - [2019] NZHC 178

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-425-000015

CRI-2018-425-000016 [2019] NZHC 178

BETWEEN
NEVILLE MORGAN MITCHELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 February 2019

Appearances:

Appellant in person

S N McKenzie for the Respondent

Judgment:

15 February 2019

JUDGMENT OF NATION J

Introduction

[1] Mr Mitchell is now 62 years of age. On 10 April 2018, he pleaded guilty to a charge of disorderly behaviour. He was convicted and sentenced to a fine of $200 plus Court costs of $130, to be paid at the rate of $5 a week.

[2] At a Judge alone defended hearing on 8 and 9 May 2018, Mr Mitchell was found guilty of assault. He was convicted and sentenced to 40 hours’ community work, the Judge considering the appropriate sentence was the least number of community work hours that he could impose. The Judge also imposed nine months’ supervision, a sentence the Judge said he wanted to impose to help Mr Mitchell. There were also special conditions that Mr Mitchell was to attend and complete the Positive Lifestyle Programme to the satisfaction of a probation officer and service provider,

MITCHELL v POLICE [2019] NZHC 178 [15 February 2019]

and to undertake assessment, counselling and treatment for such other offending issues as directed by and to the satisfaction of a probation officer.

[3] On 5 June 2018, Mr Mitchell filed an appeal against the convictions and sentences for both sets of offending on the grounds there were errors in fact and law.

[4] On 5 November 2018, Dunningham J issued a minute rescheduling the date for the hearing of an appeal from 11 December 2018 and made timetabling directions. One of those directions was that Mr Mitchell was to file his points on appeal by 30 November 2018. Dunningham J also directed:

As this appeal has been on foot for some time, and both statutory and Court ordered timetabling directions have not been complied with by the appellant, I direct that if the direction [just referred to] is not complied with by 30 November 2018, the appeal is hereby dismissed pursuant to s 338 of the Criminal Procedure Act 2011.

[5] Pursuant to that minute, on 8 November 2018, Mr Mitchell’s appeal was set down for hearing on 4 February 2019.

[6] Mr Mitchell did not file points on appeal by 30 November 2018. A document with 17 paragraphs, that might have been considered points of appeal, was filed with the Court around 25 January 2019.

[7] The proceedings were called before the Court on 4 February 2019. When the proceedings were first called, both Ms McKenzie for the respondent and Mr Mitchell indicated that, given what was set out in the points on appeal, they were not in a position to proceed.

[8] I stood the matter down so that I could discuss the situation further to clarify on what basis the appeal might proceed and any directions that would have to…

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] NZHC 178
Case: [2019] NZHC 178
Decision Date: 15 February 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Neville Morgan Mitchell appealed against his conviction and sentence for charges of disorderly behaviour and assault. The appeal was dismissed because Mitchell failed to comply with procedural directions set out in a minute of Dunningham J. Section 338 of the Criminal Procedure Act 2011 empowered the Court to dismiss the appeal on account of non-compliance with procedural orders. The Court had to give Mitchell 10 working days’ notice of its intention to dismiss the appeal. The Court gave Mitchell such notice in a minute of 5 November 2018. Mitchell did not file his points on appeal by 30 November 2018. The Court dismissed the appeal. Mitchell’s appeal is thus deemed to have been abandoned. The appeal had to be dismissed because the Court had given Mitchell 10 working days’ notice of its intention to dismiss the appeal, Mitchell had not rectified the non-compliance within the notice period, and Mitchell had not taken steps to apply to the Court of Appeal for leave to appeal against the dismissal. Mitchell had also not filed his submissions by 25 January 2019. The dismissal of the appeal, as directed by Dunningham J, is deemed to be an abandonment of Mitchell’s appeal.

Orders