Noone v Police - [2020] NZHC 1387

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-000016

[2020] NZHC 1387

BETWEEN
KATARINA NOONE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 June 2020

Appearances:

F King and M Dempster for Appellant B T Vaili for Respondent

Judgment:

18 June 2020

(ORAL) JUDGMENT OF LANG J

[on appeal for leave to appeal out of time]

Solicitors:
Crown Solicitor, Hamilton Counsel:
F King, Hamilton

NOONE v NEW ZEALAND POLICE [2020] NZHC 1387 [18 June 2020]

[1] Ms Noone faced a charge of common assault in the District Court.1 She pleaded not guilty, but after a defended hearing on 5 September 2018 Judge K B F Saunders found the charge proved beyond reasonable doubt. She fined Ms Noone the sum of $500.

[2] Fifteen months later, on 22 February 2020, Ms Noone applied for leave to appeal against conviction out of time. The Crown opposes leave being granted.

[3] The issue of whether leave should be granted is complicated in the present case by the fact that there is now no record of either the evidence given during the hearing in the District Court or the Judge’s decision. As a result, and had the appeal been filed within time, an order would usually be made remitting the charge to the District Court for rehearing. The Crown submits this is not appropriate in the present case given the unexplained delay that has occurred and says the application for leave to appeal out of time should be dismissed.

Relevant principles

[4] In R v Knight, the Court of Appeal observed that the Court’s discretion to grant leave to appeal out of time is governed by the interests of justice in each case.2 It is for the appellant to provide the Court with sufficient information to establish that a grant of leave is in the interests of justice.3

[5] In R v Lee, the Court of Appeal affirmed the test referred to in Knight and described the following factors as being relevant:4

… the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.

[6] In the present case the Court is obviously hampered in determining whether the interests of justice require leave to be granted because of the absence of any

1      Summary Offences Act 1981, s 9.
2      R v Knight [1998] 1 NZLR 583 (CA) at 587.
3      R v Davis [2007] NZCA 577 at [13].
4      R v Lee [2006] 3 NZLR 42 (CA) at [99].

transcript of evidence and reasons for the Judge’s decision. Counsel have been able to piece together, however, the relevant evidence that was given at the hearing. From the prosecution perspective, this consists of the evidence of the complainant, Mr Hodgson, and that of…

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 Noone v Police

Details

AGLC: Noone v Police [2020] NZHC 1387
Case: [2020] NZHC 1387
Decision Date: 18 June 2020

CaseChat Overview and Summary

Katarina Noone appealed against a conviction of common assault, following a defended hearing in the District Court. The hearing took place on 5 September 2018, when Judge K B F Saunders found the charge proved beyond reasonable doubt and fined Ms Noone $500. Fifteen months later, on 22 February 2020, Ms Noone applied for leave to appeal against conviction out of time. The Crown opposed leave being granted. The absence of any record of either the evidence given during the hearing in the District Court or the Judge’s decision complicated the issue of whether leave should be granted. The Court’s discretion to grant leave to appeal out of time is governed by the interests of justice in each case. The Court is obviously hampered in determining whether the interests of justice require leave to be granted because of the absence of any transcript of evidence and reasons for the Judge’s decision. The Court reached its own decision as to whether the prosecution was able to prove the charge beyond reasonable doubt. It found that the Judge was correct to find the charge proved beyond reasonable doubt. Furthermore, Ms Noone has failed to give an adequate explanation for the lengthy delay that has occurred in filing the appeal. In addition, any re-hearing in the District Court would be difficult to run at this point because of the fact that the memories of the witnesses would have dimmed since the events giving rise to the charge. Finally, the conviction resulted in Ms Noone receiving a modest fine rather than any loss of her liberty. All these factors mean it is not in the interests of justice for Ms Noone to be granted leave to appeal out of time.

The application for leave to appeal out of time is dismissed.

Orders