Note Fergusson v The Queen

[2013] NZSC 28

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NOTE  5

Fergusson v R

Supreme Court of New Zealand   SC13/2012; [2013] NZSC 28    10

11 April 2013

McGrath, William Young and Glazebrook JJ

Criminal  practice  and procedure  – Appeals to Supreme Court – Appeal from decision refusing to extend time for appeal to Court of Appeal – Appeal directly    15 from High Court subsequent  to refusal  to extend time for appeal  to Court of Appeal – Crimes Act 1961, s 383A(1) – Supreme Court Act 2003, s 14.

...

1. The present application to this Court seeks leave, first, to appeal against

the Court of Appeal’s decision refusing to extend time for a sentence appeal. In    20 the alternative, the applicant applies to appeal direct to this Court against the

High Court’s 2003 sentencing decision.

1. There is no right to appeal to this Court against a decision refusing to extend time for appeal. Section 383A(1) only permits appeals with leave from

decisions of the Court of Appeal on appeal and an application for extension of    25 time is not of that character. Recognising the likelihood that this Court would

so hold, counsel for the applicant also seeks leave to bring a leapfrog appeal against the High Court’s sentencing decision. Although there is no statutory bar against such an appeal, unless there are compelling  circumstances  this Court

will not permit direct appeals where their effect would be to circumvent  the    30 inability of an applicant to appeal against the refusal of the Court of Appeal to extend time for appeal. As well, the Court is required by s 14 of the Supreme Court Act only to permit a direct appeal in exceptional circumstances.

1. In this case, the applicant does not meet either threshold ...

   Application dismissed.          35