Morgan v Police - [2013] NZHC 771

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000308

CRI-2012-404-000310 [2013] NZHC 771

RAE MICHELLE MORGAN
Applicant
v

NEW ZEALAND POLICE
Respondent

Hearing: On the papers

Counsel: Y Lee for the Applicant
B Hamlin for the Respondent

Judgment: 16 April 2013

JUDGMENT OF WOOLFORD J

[As to application for leave to appeal to Court of Appeal]

This judgment was delivered by me on Tuesday, 16 April 2013 at 11:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Y Lee, Barrister, PO Box 33 718, Takapuna, Auckland
Crown Solicitor, Auckland

MORGAN V NZ POLICE HC AK CRI-2012-404-000308 [16 April 2013]

Introduction

[1] On 9 August 2012, Rae Michelle Morgan (“the applicant”) was convicted and sentenced on a number of charges, including assault on Police, wilful damage, resisting Police and failing to provide her name and other particulars. She was sentenced to 80 hours community work on the assault, wilful damage and resisting charges. On the charge of failing to provide her name and other particulars, she was convicted and discharged.

[2] The applicant appealed to this Court against both conviction and sentence but neither the grounds of appeal, nor the submissions from the applicant, dealt with the sentence. After hearing submissions from counsel, I gave an oral judgment on
5 February 2013 in which I dismissed the appeal. The applicant now seeks leave to appeal from my judgment to the Court of Appeal.

Legal principles

[3] Leave to appeal to the Court of Appeal is dealt with in s 144 of the Summary

Proceedings Act 1957. It provides:

144 Appeal to Court of Appeal

(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that court, and the High Court may grant leave accordingly if in the opinion of that court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

(3) Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time…

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.

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Details

Case: [2013] NZHC 771
Decision Date: 16 April 2013

CaseChat Overview and Summary

The applicant, Rae Michelle Morgan, sought leave to appeal against a decision of Woolford J in the High Court of New Zealand. Morgan had been convicted and sentenced for various offences including assault on police, wilful damage, resisting police and failing to provide her name and other particulars. Morgan appealed against both conviction and sentence, but her grounds of appeal and submissions did not address the sentence. Woolford J dismissed the appeal and Morgan now seeks leave to appeal that decision to the Court of Appeal.

The court considered whether leave to appeal should be granted under section 144 of the Summary Proceedings Act 1957. The applicant needed to demonstrate that there was a question of law of general or public importance that ought to be submitted to the Court of Appeal. The court found that the applicant's questions of law did not arise in the circumstances of the case or, if they were questions of law, they were not of general or public importance. The court also found that the police had authority to arrest Morgan if she was found committing any offence.

In summary, the court dismissed Morgan's application for leave to appeal the decision of Woolford J. The court found that the questions of law raised by Morgan did not meet the requirements for leave to appeal under section 144 of the Summary Proceedings Act 1957.

Orders