Moore v Police - [2018] NZHC 181

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-469

[2018] NZHC 181

BETWEEN
SHANE MOORE

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 February 2018

Appearances:

Appellant in person (P H H Tomlinson granted leave to withdraw) M Mortimer for Respondent

Judgment:

19 February 2018

(ORAL) JUDGMENT OF LANG J

[on application for leave to appeal against conviction]

MOORE v NEW ZEALAND POLICE 2 [2018] NZHC 181 [19 February 2018]

[1] Mr Moore was convicted of common assault after a defended hearing in the District Court on 30 November 2010. An associated charge of theft was either dismissed or withdrawn at or about the same time.

[2] On 10 March 2011, Mr Moore was sentenced to 250 hours community work and nine months supervision. He was also ordered to pay an emotional harm reparation payment in the sum of $250 to the victim of his offending.

[3] Mr Moore now seeks leave to appeal against his conviction. He says that a combination of circumstances prevented him from presenting his defence when the charge was heard. He therefore says a miscarriage of justice has occurred, and that the conviction should be set aside.

Relevant principles

[4] Mr Moore did not file his appeal against conviction until 4 December 2017. As a result it is nearly eight years out of time. He therefore requires leave to appeal against conviction.

[5] The principles that govern an application for leave to appeal against conviction out of time are well-established. The Court is required to consider the length of the delay and the reasons for it, whether or not any prejudice will be caused to the respondent if a re-trial is ordered, whether the liberty of the appellant is at risk if the appeal is not heard and the impact of the continuing conviction on the administration of justice.1 One of the most important policy principles in this area is the principle that there needs to be finality of court decisions. Any decision that is the subject of appeal many years after a conviction raises obvious difficulties for all concerned.

Background

[6] The incident giving rise to the charge occurred whilst Mr Moore was a passenger on a Metrolink bus. The prosecution case was that Mr Moore verbally abused several schoolchildren on the bus. When the bus driver intervened, Mr Moore is said to have become involved in an altercation with him. This culminated in Mr Moore grabbing the driver by the jacket and pulling him off the bus. He is then

1 O’Sullivan v R [2016] NZCA 204 at [20]; R v Lee [2006] 3 NZLR 42 (CA) at [99].

said to have punched the driver at least eight times with a closed fist. This resulted in the driver receiving a black eye and a cut to his forehead.

[7] Mr Moore says he was prevented from putting forward a defence because, at the time of the defended hearing, he was recovering from a…

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 Moore v Police

Details

AGLC: Moore v Police [2018] NZHC 181
Case: [2018] NZHC 181
Decision Date: 19 February 2018

CaseChat Overview and Summary

In this case, Shane Moore sought leave to appeal his conviction for common assault, which occurred after a defended hearing in the District Court. Moore was sentenced to 250 hours of community work, nine months of supervision, and ordered to pay $250 in emotional harm reparation. Moore argued that he was prevented from presenting his defence due to a violent assault he suffered prior to the hearing, resulting in a miscarriage of justice. The application for leave to appeal was made nearly eight years out of time, requiring special permission from the High Court.

The legal issues before the court included the lengthy delay in filing the appeal, the reasons for the delay, the potential prejudice to the respondent if a retrial were ordered, the risk to Moore's liberty if the appeal were not heard, and the impact of the continuing conviction on the administration of justice. The court emphasised the principle of finality in litigation, acknowledging the difficulties of a retrial after such a long period and the dimming of memories over time. The court also considered Moore's personal circumstances and the fact that he had completed the community treatment order imposed by the District Court.

The High Court found that the delay in filing the appeal was too great, and the prejudice to the prosecution would be too significant to overcome. The court emphasised the need for finality in litigation and was not persuaded that the interests of justice required granting leave to appeal. The court dismissed the application for leave to appeal.

The court directed that the judgment be forwarded to the Registrar of the District Court to amend Moore's criminal record to reflect the correct outcome of the sentencing process. The court noted that Moore had completed the reparation payments, and that aspect of the matter did not need to be revisited. The application for leave to appeal against conviction was dismissed.

Orders