Moore v Police - [2015] NZHC 355

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2015-488-3 [2015] NZHC 355

BETWEEN
DEAN MOORE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 March 2015

Counsel:

J A G Moroney for Appellant
M B Smith for Respondent

Judgment:

4 March 2015

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Thode Utting & Co, Northcote, Auckland
Crown Solicitor, Whangarei

MOORE v NEW ZEALAND POLICE [2015] NZHC 355 [4 March 2015]

District Court at Whangarei on 4 November 2014, on charges of resisting a constable in the execution of his duty and assaulting two constables in similar circumstances. Convictions were entered following findings of guilt made by the Judge at the conclusion of a defended hearing.

[2] The appeal was filed out of time. The specified time for an appeal against conviction is 20 working days after the date of sentence for the conviction against which the appeal is brought.1 Mr Moore was sentenced on 4 November 2014. The notice of appeal that Mr Moore filed was dated 24 December 2014.

[3] In his notice of general appeal, Mr Moore specified as his grounds of appeal a challenge to the Judge’s finding that the police officers were acting lawful in the execution of their duty. He said that there was “evidence now available that calls into question the Police version of events” and that “there is medical evidence now available that corroborates an allegation of excessive force by the officers”.

[4] The jurisdiction to file further evidence on appeal is found in r 8.8 of the Criminal Procedure Rules 2012. The particulars of further evidence must be set out in the notice of appeal or in a memorandum to be filed and served not later than 30 working days after filing the notice of appeal, setting out the further evidence and explaining why it was not available at trial and could not with reasonable diligence have been called. There has been no compliance with those requirements notwithstanding the fact that the notice of appeal was filed on 24 December 2014.

[5] In support of an application to extend the time for appeal under s 231(3) of the Criminal Procedure Act 2011 (the Act), Mr Moore said that he raised the issue of a possible appeal with new counsel assigned on other matters on 4 December 2014. He could only give instructions on 22 December 2014 due to counsel’s other Court commitments. Counsel named as acting on the appeal was Ms Wilkinson-Smith.

[6] The appeal came before me for a case management conference by telephone

on 12 February 2015 following Mr Moroney’s subsequent assignment to act for Mr

1 Criminal Procedure Act 2011, s 231(2).

to review evidence. He did not appear for Mr Moore in the District Court. The date that had been allocated for the appeal was 2 March 2015.

[7] Because of further steps that Mr Moroney needed to take and the absence (at that time) of the transcribed notes of evidence taken before Judge Collins, I vacated that…

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 [2015] NZHC 355
Case: [2015] NZHC 355
Decision Date: 4 March 2015

CaseChat Overview and Summary

Dean Moore appealed against his convictions for resisting a constable in the execution of their duty and assaulting two constables. The District Court found him guilty after a defended hearing. The appeal was filed out of time and did not comply with the Criminal Procedure Rules 2012 requirements for including new evidence. The appeal was also not supported by an affidavit from the appellant, as required by the court’s directions. The court held that the appeal could be dismissed for lack of diligence in prosecuting the appeal. The appeal was dismissed for non-compliance with the procedural orders and lack of diligence in prosecuting the appeal. The court noted that the appeal had not been filed within the specified time and did not comply with the Criminal Procedure Rules 2012 requirements for including new evidence. The court also noted that the appeal was not supported by an affidavit from the appellant, as required by the court’s directions. The court held that it was open to it to dismiss the appeal at that stage on the basis that the appellant had not taken any steps to prosecute it diligently. The appeal was dismissed with costs.

Orders