Partridge v The Queen - [2015] NZCA 504

IN THE COURT OF APPEAL OF NEW ZEALAND

CA526/2015
[2015] NZCA 504

BETWEEN	RORY DAMIEN PARTRIDGE Applicant
AND	THE QUEEN Respondent

Hearing:	12 October 2015
Court:	Ellen France P, Asher and Collins JJ
Counsel:	Applicant in person (via videolink) K S Grau for Respondent
Judgment:	13 October 2015 at 10.30 am
Reasons:	27 October 2015

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

On 13 October 2015 we issued a results judgment dismissing Mr Partridge’s application for leave to appeal a decision made by Judge Turner in the Invercargill District Court.[1] In his decision, Judge Turner dismissed Mr Partridge’s application to transfer his sentencing from Invercargill to the Hutt Valley District Court.[2] This judgment explains the reasons for our decision.

Background

[1]Partridge v R [2015] NZCA 486.

[2]New Zealand Police v Partridge [2015] NZDC 17765.

Mr Partridge was initially charged with five charges of burglary and one of theft in Gore on various dates between 29 December 2014 and 29 January 2015. On 24 June 2015, Mr Partridge was granted leave to elect trial by jury in relation to those charges.[3]
[3]New Zealand Police v Partridge DC Invercargill CRI-2015-17-89, 24 June 2015.
On 31 August 2015, Mr Partridge pleaded guilty to two burglary charges and three charges of receiving stolen property. He was to be sentenced in the Invercargill District Court on 21 October 2015. Mr Partridge applied to have his sentencing transferred to the Hutt Valley District Court on the basis that members of his family live in Lower Hutt, are important to him and can provide him with support during the sentencing process.
In addition to seeking leave to appeal the decision declining his application to transfer his sentencing, Mr Partridge sought leave to appeal Judge Turner’s concurrent decision declining to call for a report on the suitability of Mr Partridge being sentenced to home detention.[4] Mr Partridge abandoned his application to appeal that aspect of Judge Turner’s decision.

Jurisdiction

[4]New Zealand Police v Partridge, above n 2.

Although we have determined Mr Partridge’s application on its merits, we have reservations about whether or not there is jurisdiction for this Court to hear Mr Partridge’s appeal. We will briefly set out our reasons for our reservations.
Applications to transfer proceedings are governed by s 157 of the Criminal Procedure Act 2011 (the Act).[5] The relevant provisions of s 157 of the Act state:
157Transfer of proceedings to court at different place or different sitting
(1)A District Court Judge may, … on the application of … the defendant, transfer a proceeding to a District Court at a place or sitting other than that determined in accordance with sections 35 … or 73 … if the court is satisfied that it is in the interests of justice that the proceeding be heard at that other place or sitting.
…
(4)Except as provided in sections 217 and 218, no person…

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 Partridge v The Queen

Details

AGLC: Partridge v The Queen [2015] NZCA 504
Case: [2015] NZCA 504
Decision Date: 13 October 2015 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Rory Damien Partridge applied for leave to appeal a decision made by Judge Turner in the Invercargill District Court that declined his application to transfer his sentencing to the Hutt Valley District Court. Partridge had pleaded guilty to two burglary charges and three charges of receiving stolen property. The Court of Appeal dismissed Partridge's application for leave to appeal and, in doing so, considered whether it had jurisdiction to hear the appeal and if so, whether it should allow the appeal on its merits.

The Court of Appeal found that although the application to transfer proceedings is governed by section 157 of the Criminal Procedure Act 2011, it was not satisfied that it had jurisdiction to hear the appeal. The Court noted that the appeal was not a pre-trial decision as Partridge had pleaded guilty, and therefore sections 217 and 218 of the Act were not engaged. The Court further noted that while Partridge could argue that his concerns were amenable to examination as part of a sentence appeal, he would face difficulties in arguing the venue of his sentencing materially impacted upon any sentence imposed.

The Court of Appeal then considered the merits of the appeal and dismissed it. Judge Turner had based his decision on the grounds that the victims of Partridge's offending should have the opportunity to participate in a restorative justice conference and/or attend and participate in the proceedings when Partridge was sentenced, and the adage that justice should be dispensed in the area in which the offending occurred applies in this case. However, the Court found that the interests of Partridge's victims were no longer directly relevant as they did not wish to participate in a restorative justice conference or attend his sentencing. The Court also noted that Partridge's co-defendant was sentenced in the Invercargill District Court, and Partridge acknowledged this in itself was a sound reason for him to be also sentenced by the same Judge.

The Court of Appeal found that, although one of the grounds relied upon by Judge Turner was no longer relevant, there was no basis for interfering with the way he exercised his discretion. For these reasons, the application for leave to appeal was dismissed.

Orders