Murray v Police

[2013] NZHC 996

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-044-002209 [2013] NZHC 996

DAVINA VALERIE MURRAY

Appellant

v

NEW ZEALAND POLICE

First Respondent

DEPARTMENT FOR CORRECTIONS

Second Respondent

SERCO NZ LIMITED

Third Respondent

Hearing:         7 May 2013

Counsel:         Appellant in Person

A R Longdill for the First Respondent C A Griffin for the Second Respondent C F Parkhill for the Third Respondent

Judgment:      7 May 2013

REASONS FOR ORAL JUDGMENT OF GILBERT J

Counsel: D V Murray, Auckland:  [email protected]

A R Longdill, Auckland:  [email protected]

C A Griffin, Auckland:  [email protected]

C F Parkhill, Auckland:  [email protected]

MURRAY V POLICE HC AK CRI 2012-044-002209 [7 May 2013]

[1]       The appellant, Ms Murray, appeals against a ruling of Judge Collins given in the Auckland District Court on 28 March 2013.  There is no right of appeal from this ruling and accordingly no jurisdiction for this appeal.  I accordingly dismissed the appeal and said that I would provide brief reasons for doing so shortly. These are my reasons.

[2]      On 10 April 2013, Ms Murray filed a notice of general appeal under s 116 of the Summary Proceedings Act 1957 against a decision dated 4 April 2013.  At the hearing today, Ms Murray confirmed that there is no such decision and she asked me to treat her appeal as being from the ruling of Judge Collins made on 28 March 2013.

[3]      In her notice of appeal, Ms Murray asserts that she was the applicant for an order under s 138(2)(a) of the Criminal Justice Act 1985.  That provision enabled the Court to make an order forbidding publication of any part of the evidence adduced or the submissions made at a hearing.  Ms Murray did not apply for any such order and her notice of appeal is incorrect in asserting that she had done so.  Further, s 138 of the Criminal  Justice Act  was  repealed as  from  5 March  2012  by s  393  of the Criminal Procedure Act 2011.

[4]      Section 138(2)(a) of the Criminal Justice Act is now replaced by s 205 of the Criminal Procedure Act.  However, Ms Murray acknowledges that she did not apply for any order under that section and she concedes that she has no right of appeal under that section.  She invites me to treat her appeal as having been brought under s 33(2) of the Criminal Disclosure Act 2008.

[5]      Section 116(1A) applies to appeals under s 33 of the Criminal Disclosure Act and requires that any such appeal be brought within three days after the date of the decision against which the appeal is brought.  Ms Murray accepts that her appeal is therefore out of time

[6]      Further, no appeal under s 33 of the Criminal Disclosure Act may be brought without leave. (Section 33(3)(b)).  Ms Murray overlooked this requirement and has not made any application for leave.

[7]      In any event, s 33(2) provides for appeals against a decision of a Court under s 29.  Section 29 empowers the Court to make various orders after the hearing of a non-party disclosure application under s 27.  No orders have yet been made under s 29  because  that  hearing  has  not  yet  concluded;  it  remains  part-heard  in  the District Court.  It follows that there is, as yet, no decision under s 29 amenable to appeal. The ruling dated 28 March 2013 is not a decision made pursuant to s 29.

[8]      Ms Murray has no right of appeal from the ruling.  Quite apart from the fact that the appeal is defective and has been brought out of time without the required leave, there is no jurisdiction for the appeal in any event.   It must accordingly be

dismissed.

M A Gilbert J