Murdoch v Police - [2019] NZCA 366

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA712/2018
[2019] NZCA 366

BETWEEN	JOSHUA STEPHEN MURDOCH Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	1 August 2019
Court:	French, Mallon and Moore JJ
Counsel:	Applicant in Person A J Ewing for Respondent
Judgment:	16 August 2019 at 10 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

On 21 August 2018 Mr Murdoch pleaded guilty in the Christchurch District Court to a charge of threatening to cause grievous bodily harm. He was convicted and sentenced to nine months’ supervision.[1]
[1]Police v Murdoch [2018] NZDC 19256.
He appealed that conviction and sentence to the High Court. The appeal was dismissed by Gendall J on 2 November 2018.[2]
[2]Murdoch v Police [2018] NZHC 2849.
He now seeks leave to bring a second appeal against his conviction and sentence. The application is opposed.

Factual and procedural background

The charge related to a threat Mr Murdoch made on 25 May 2018. The complainant was a woman who worked at the Ministry of Social Development (MSD). Mr Murdoch had telephoned the MSD to arrange emergency housing. In the course of his discussions with the complainant, Mr Murdoch became verbally aggressive. He shouted at the complainant and said “I’m gonna fucking come down there and smash your face in! I’m gonna tear the place apart and rip your face off.”
Upset by these threats the MSD worker complained to the Police and Mr Murdoch was charged with threatening to cause grievous bodily harm.
On 21 August 2018 Mr Murdoch appeared before Judge T J Gilbert. A transcript of the exchange between Mr Murdoch and the bench has been obtained. This reveals that Mr Murdoch’s counsel, Mr Dickson, sought leave to withdraw on the basis that Mr Murdoch had made it plain he no longer wished Mr Dickson to act for him. It is not clear from the transcript whether the Judge granted leave although nothing in this appeal turns on that.
There then followed a discussion between the Judge and Mr Murdoch about the alleged offending and what the sentence might be if he pleaded guilty. In the course of those discussions Mr Murdoch described the circumstances surrounding his call to MSD. At no time did he challenge the correctness of the allegations made against him. Instead he requested regular counselling to assist him with his mental health issues. The Judge carefully explained what a sentence of supervision would involve before asking Mr Murdoch whether he wished to plead guilty to the charge. Mr Murdoch said he did. The charge was then put to him by the Judge who asked him how he wished to plead. Mr Murdoch responded, “Guilty”. The Judge then entered a conviction and sentenced Mr Murdoch to nine months’ supervision.
Notwithstanding his plea of guilty Mr Murdoch appealed his conviction and sentence to the High Court. He…

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 Murdoch v Police

Details

AGLC: Murdoch v Police [2019] NZCA 366
Case: [2019] NZCA 366
Decision Date: 16 August 2019 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Joshua Stephen Murdoch sought leave to bring a second appeal against his conviction and sentence for threatening to cause grievous bodily harm. Murdoch had previously pleaded guilty in the Christchurch District Court and had his appeal against conviction and sentence dismissed by the High Court. Murdoch claimed he was pressured into pleading guilty and did not fully understand the consequences of his plea. The legal issues before the Court of Appeal were whether a miscarriage of justice had occurred or might occur, and whether the appeal involved a matter of general or public importance.

The Court of Appeal held that Murdoch had not satisfied the high threshold for granting leave to bring a second appeal. There were no exceptional circumstances present, as Murdoch had fully understood the consequences of his guilty plea and had not been pressured to plead guilty. Murdoch also did not deny making the threatening phone call. The Court found no miscarriage of justice had occurred and the appeal did not involve a matter of general or public importance.

Accordingly, the Court of Appeal declined Murdoch's application for leave to bring a second appeal against his conviction and sentence. The appeal was dismissed.

Orders