Mitchell v The the Queen - [2022] NZSC 89

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 46/2022
[2022] NZSC 89

BETWEEN	KERRYN MITCHELL Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Kós JJ
Counsel:	Applicant in person F E Cleary and K L Kensington for Respondent
Judgment:	21 July 2022

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted following a jury trial before Judge Mill in the District Court at Wellington on two charges of breaching a protection order and three charges of attempting to breach a protection order. She was sentenced to two years and three months' imprisonment.[1] We understand that she has served that sentence in full and been released from custody on release conditions. Her appeal against conviction and sentence to the Court of Appeal was dismissed.[2] She now seeks leave to appeal her conviction and sentence to this Court.
[1]R v Mitchell [2021] NZDC 5941 [DC sentencing notes].
[2]Mitchell v R [2022] NZCA 159 (Gilbert, Woolford and Dunningham JJ).
The proposed conviction appeal seeks to:
(a)challenge decisions of the Family Court making the protection order in favour of Mr L (who had briefly been the applicant’s lover) and extending that order to include Mrs L (whom Mr L subsequently married);
(b)challenge the admissibility of evidence relating to the transmission of the relevant letter correspondence to Mr and Mrs L (which is the substance of the first two charges), the production of the protection order in evidence, and the admission of propensity evidence; and
(c)challenge the verdicts on the basis of consent to contact by Mr L.
These grounds are intensely fact-specific. No matter of general or public importance is raised by the proposed conviction appeal.[3] As we apprehend the evidence, there is no risk that a substantial miscarriage of justice has occurred, or will occur, if leave is not granted:[4]
(a)The protection order was challenged in 2016; the High Court dismissed the challenge.[5] The Court of Appeal had previously declined leave to appeal further against a decision barring the applicant from bringing a further application to seek a discharge of the order.[6] Collateral challenge here and now is not appropriate.
(b)The indicated challenges to admissibility have insufficient prospects of success. The exact mechanism of transmission is not material to the offence of breach of a protection order, which on these facts is simply concerned with whether the applicant caused the letters to be delivered to Mr and Mrs L’s mailbox. The order itself appears to have been duly produced in terms of s 139 of the Evidence Act 2006. The applicant’s knowledge of the order was plainly established by her own challenges to its making, and prosecutions for prior breaches. The latter gave rise to the propensity evidence, and we see no error in the Judge summarising for the jury the basic facts of each prior conviction relevant on a propensity basis.
(c)The challenge based on consent to contact lacks evidential foundation.
[3]Senior Courts…

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 The the Queen

Details

AGLC: Mitchell v The the Queen [2022] NZSC 89
Case: [2022] NZSC 89
Decision Date: 21 July 2022

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal from Kerryn Mitchell against her conviction and sentence. Mitchell was convicted by a jury of two charges of breaching a protection order and three charges of attempting to breach a protection order. She was sentenced to two years and three months' imprisonment. The appeal against conviction and sentence to the Court of Appeal was dismissed. Mitchell sought leave to appeal her conviction and sentence to the Supreme Court. The legal issues the court had to decide were whether the protection order was correctly made, if the evidence was admissible, and if the verdict was based on consent. The court found that the order was challenged in the past and dismissed, and that the evidence was admissible. The court also found that the challenge based on consent lacked evidential foundation. The court concluded that the matters Mitchell wished to raise were particular to her case and did not give rise to any matter of general or public importance. The application for leave to appeal was dismissed.

The Supreme Court considered the proposed conviction appeal and found that it sought to challenge decisions of the Family Court making the protection order in favour of Mr L and extending that order to include Mrs L. The court also considered whether the admissibility of evidence relating to the transmission of the relevant letter correspondence to Mr and Mrs L, the production of the protection order in evidence, and the admission of propensity evidence was challenged. The court further considered whether the verdicts were challenged on the basis of consent to contact by Mr L. The court found that the grounds were intensely fact-specific and that no matter of general or public importance was raised by the proposed conviction appeal. The court also found that there was no risk that a substantial miscarriage of justice had occurred, or will occur, if leave was not granted. The court concluded that the proposed conviction appeal did not raise any significant legal issues that warranted further consideration.

Orders