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Mitchell v R

Mitchell v R

Case [2015] NZCA 442 16 September 2015

Admissibility of Evidence

Jurisdiction

Breach of Contract

Unconscionable Conduct

Res Judicata

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA178/2015
[2015] NZCA 442

BETWEEN	KERRYN MITCHELL Appellant
AND	THE QUEEN Respondent

Hearing:	19 August 2015
Court:	Ellen France P, Courtney and Clifford JJ
Counsel:	N Levy for Appellant M J Lillico and S Bishop for Respondent
Judgment:	16 September 2015 at 3.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

Introduction

Kerryn Mitchell was convicted of four counts of breaching a protection order contrary to ss 19(2)(e) and 49(1)(a) of the Domestic Violence Act 1995 after trial by jury in the Wellington District Court. The breaches involved four voice mail messages left by Ms Mitchell for her former partner. She was sentenced by the trial Judge, Judge Tuohy, to four months imprisonment.[1]
[1]R v Mitchell [2015] NZDC 6871 [sentencing notes].
Ms Mitchell appeals against conviction and sentence. Her conviction appeal raises issues about the evidence identifying her as the caller in the voice mails; about whether her knowledge of the protection order was established and as to the admissibility of evidence from a police officer about an admission made by Ms Mitchell.
The sentence appeal is brought on the basis her sentence was manifestly excessive.

Background

Ms Mitchell and the complainant were in a relationship that began in 2002 and ended about four years later. The complainant obtained an interim protection order against Ms Mitchell in November 2007. That order became final in April 2008. Ms Mitchell has been convicted of breaching that order on a number of occasions.[2]
[2]Sentencing notes, above n 1, at [5]. See also, for example, R v Mitchell [2015] NZCA 441 at [7]–[15]; and Mitchell v R [2013] NZCA 583 at [3].
The present appeal relates to a trial in which Ms Mitchell faced ten counts of breach of that protection order. Five of the counts related to text messages the Crown said Ms Mitchell sent to the complainant in October 2012. A further charge concerned a letter the Crown alleged Ms Mitchell sent to the complainant in early February 2013. Finally, there were four charges relating to voice mail messages Ms Mitchell left for the complainant in the early hours of 4 November 2012.
Ms Mitchell was acquitted on the charges relating to text messages and the letter. She was convicted of four charges relating to the voice mail messages.
When these matters came to trial before Judge Tuohy in February 2015, Ms Mitchell had already served the term of two years, one month

imprisonment for subsequent offending in relation to the same complainant in December 2012. This term of imprisonment had been imposed by Judge Becroft.[3]

Conviction appeal

[3]R v Mitchell DC Wellington CRI-2012-032-3561, 10 September 2013. This sentence was imposed after Ms Mitchell pleaded guilty to one count of intentional damage and one count of breach of a protection order involving entry onto the land of the protected person. The sentence was upheld on appeal: Mitchell…

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 R

Details

AGLC: Mitchell v R [2015] NZCA 442
Case: [2015] NZCA 442
Decision Date: 16 September 2015 at 3.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Kerryn Mitchell v R was heard. Mitchell appealed against her conviction and sentence for breaching a protection order by leaving four voice mails for her former partner. The appeal was dismissed by the Court, upholding the conviction and sentence. The appeal raised issues concerning the reliability of voice identification evidence, the admissibility of evidence from a police officer about an admission made by Mitchell, and the excessiveness of her sentence.

The issues addressed by the Court were whether the voice identification evidence was reliable, whether the Crown had established Mitchell's knowledge of the protection order, and if the evidence from the police officer was admissible. The Court found that the voice identification evidence was reliable and admissible, as the complainant was familiar with Mitchell's voice and confident in their identification. The Court also found that the error in the summing-up regarding the service of the protection order did not impact the outcome of the trial. Lastly, the Court held that the evidence from the police officer was admissible and properly relied on by the Crown.

The Court held that the sentence imposed was not manifestly excessive, as it took into account Mitchell's extensive history of breaching the protection order and the nature of her offending. The sentence of four months imprisonment, after deducting time served, was deemed appropriate, considering the circumstances of the case. The appeal against conviction and sentence was dismissed.

The final orders of the Court were to dismiss the appeal against conviction and sentence, upholding the conviction and sentence imposed by the trial court.

Orders