Moore v Police - [2018] NZHC 180

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-283 [2018] NZHC 180

BETWEEN
SHANE MOORE

Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 February 2018

Appearances:

P H H Tomlinson for Appellant
M Mortimer for Respondent

Judgment:

19 February 2018

JUDGMENT OF LANG J

[on application for leave to appeal against conviction]

This judgment was delivered by me on 19 February 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MOORE v NEW ZEALAND POLICE [2018] NZHC 180 [19 February 2018]

[1] Mr Moore pleaded guilty in the District Court to a charge of trespass. On

6 August 2016 Judge Paul ordered him to come up for sentence if called upon to do so within 12 months.1

[2] Mr Moore now seeks leave to appeal against conviction out of time on the basis that a miscarriage of justice has occurred. He says he had defences to the charge and that Mr Richard Keam, counsel who acted for him in the District Court, did not properly advise him in relation to those defences.

Background

[3] The charge was laid following an incident that occurred on 11 May 2015 as part of an apparently long-running dispute between Mr Moore and the manager of a boarding house at 24 Bongard Road, Mission Bay. I infer Mr Moore had earlier been living at the address. These issues had led to the police serving Mr Moore with a trespass notice on behalf of the occupier of the property in or about January 2013.

[4] Counsel for the respondent has provided the Court with formal statements prepared by the manager of the boarding house, Mr David Choi, and Constable Matthew Sillars immediately following the events giving rise to the charge. These set out the basis for the prosecution case had the matter proceeded to trial

[5] Mr Choi says Mr Moore arrived at his address at about 7.45 am on the morning of 11 May 2015. He says Mr Moore was walking around on the end of his driveway holding a placard describing Mr Choi in highly derogatory terms. He was yelling out the word “demonstration” repeatedly, and also yelling out that Mr Choi was an “evil bastard” and an “arsehole”.

[6] Mr Choi says he called the police, but by the time they arrived Mr Moore had left the property. He told Constable Sillars what had happened and about the ongoing
issues with Mr Moore. The constable then left the address in search of Mr Moore.

1 New Zealand Police v Moore [2015] NZDC 26144.

[7] Constable Sillars located Mr Moore a short time later at a nearby shopping centre. They advised Mr Choi of this fact and he authorised them to serve a new trespass notice on Mr Moore. Constable Sillars then prepared and served a new trespass notice on Mr Moore that prohibited him from going to 24 Bongard Road for a period of two years.…

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 180
Case: [2018] NZHC 180
Decision Date: 19 February 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Shane Moore applied for leave to appeal against his conviction for wilful trespass, arguing a miscarriage of justice occurred due to inadequate advice from his legal representative. The court had to determine whether the appeal should be heard despite the significant delay in filing the application and whether the proposed grounds for appeal were likely to succeed. The court considered the delay's impact on the administration of justice and the prosecution, the strength of the proposed appeal grounds, and the principle of finality in litigation.

The court found that the delay in filing the appeal application was substantial, and the prosecution would be prejudiced by a retrial due to the passage of time. Regarding the merits of the appeal, the court noted that an appeal against conviction following a guilty plea will only succeed if a miscarriage of justice is likely without the appeal. It was established that Mr. Moore fully appreciated his position and made an informed decision to plead guilty. The court examined the proposed grounds of appeal, one relating to the validity of the trespass notice and the other based on Mr. Moore's mental state at the time of the offence. The court concluded that the prospects of success for both grounds were not strong, and the finality of litigation should prevail. Therefore, the application for leave to appeal was dismissed.

The final orders of the court were that the application for leave to appeal against conviction was dismissed, and Mr. Moore was to be held to his plea on the charge of trespass.

Orders