Morgan v Police - [2012] NZHC 3323

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000308 [2012] NZHC 3323

RAE MICHELLE MORGAN
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 4 December 2012

Counsel: Y Lee for Appellant
B Hamlin for Respondent

Judgment: 10 December 2012

JUDGMENT OF ASHER J

This judgment was delivered by me on Monday, 10 December 2012 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Y Lee, PO Box 33718, Takapuna, Auckland 0740. Email: lee1955@gmail.com
Crown Solicitor, DX CP24063, Auckland 1140. Email: ben.hamlin@meredithconnell.co.nz

MORGAN V NZ POLICE HC AK CRI-2012-404-000308 [10 December 2012]

Introduction

[1] The appellant Rae Morgan wrote to this Court on 1 October 2012 by letter received on 19 October 2012 abandoning her appeal against various convictions in the District Court. She has now changed her mind and wishes to proceed with the appeal. She applies to continue her appeal, notwithstanding the letter of abandonment.

[2] On 9 August 2012 she had been convicted by Judge P W Cooper in the District Court at Auckland of failing to give particulars of her name and address as required by s 9 of the Trespass Act 1990, resisting arrest by a Constable acting in the execution of his duty, intentionally damaging a radio aerial on a Police vehicle, and assaulting a Constable in the execution of her duty.

[3] The charges had arisen out of an incident where she had been asked to leave a hotel on the basis that she was intoxicated and using bad language. She was escorted out of the bar but after stayed in the porch area near the front door, although not inside the bar. This was when she was approached by the Police and the various incidents covered by the charges occurred. Having found her guilty of the charges Judge Cooper sentenced her to 80 hours’ community work and ordered her to pay reparation of $102.57. He noted she had an extensive history of assaults on the Police and obstruction of the Police.

[4] Ms Morgan filed a notice of appeal. However, before the appeal was first called in this Court the notice abandoning appeal was filed.

[5] Ms Morgan has filed an affidavit explaining the circumstances of her sending the letter of abandonment. She had already completed half the community work hours imposed as a penalty for the offending. Due to a house burglary her camera with photographs that were important to her hearing and her appeal had been stolen. She did not want to waste Court time. However, she recorded in the notice of abandonment that a Police officer had lied.

In the District Court and up to the time of filing the notice of abandonment, Ms Morgan had been represented by Mr Lee. She wrote the notice of abandonment letter without consulting him. Mr Lee who appeared in support of the application explained that Ms Morgan has an alcohol problem and was depressed at the time. He asserts that she has mental health issues. He also explained…

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 Morgan v Police

Details

AGLC: Morgan v Police [2012] NZHC 3323
Case: [2012] NZHC 3323
Decision Date: 10 December 2012

CaseChat Overview and Summary

Rae Michelle Morgan, the appellant, has appealed against her convictions in the District Court for failing to give particulars of her name and address as required by the Trespass Act 1990, resisting arrest, intentionally damaging a radio aerial on a Police vehicle, and assaulting a Constable in the execution of his duty. The convictions arose from an incident where she was asked to leave a hotel due to her intoxication and use of bad language, and subsequently stayed in the porch area near the front door. The appellant had initially abandoned her appeal but now seeks to continue it. The Police, the respondent, argued that the notice of abandonment complied with statutory requirements and should not be set aside.

The court was required to decide whether the notice of abandonment complied with the statutory requirements, and if not, whether it should be set aside due to a failure of form under Section 204 of the Summary Proceedings Act. The court considered whether the non-compliance with the form resulted in a miscarriage of justice. The notice of abandonment was not in the prescribed form as it did not state the determination appealed against and her signature was not witnessed. The court determined that the notice of abandonment should be treated as ineffective due to the appellant's fragile mental state, lack of consultation with her lawyer, and the potential for a miscarriage of justice in depriving her of her right to appeal.

The court found that the notice of abandonment was not in the prescribed form and was therefore not an effective notice of abandonment. The court concluded that it would be a miscarriage of justice to treat the notice of abandonment as effective, given the appellant's fragile mental state, lack of consultation with her lawyer, and the importance of the right to appeal. The court declared that the notice of abandonment of appeal dated 1 October 2012 was ineffective, and the appeal would proceed as soon as possible.

Orders