Legal Research
Cases
Petryszick v R

Petryszick v R

Case [2010] NZSC 105 24 August 2010

Appeal

Jurisdiction

Standing

Admissibility of Evidence

Limitation Periods

Specific Performance

Criminal Law

No judgment structure available for this case.

Type to search within this case.

For a Court ready (fee required) version please follow this link

IN THE SUPREME COURT OF NEW ZEALAND

SC 103/2009
[2010] NZSC 105
PETER MORRISON PETRYSZICK
v
THE QUEEN
Hearing:23 July 2010

Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:Appellant in person
D B Collins QC, Solicitor-General, C J Curran and P D Marshall for Crown
G J King as Amicus Curiae

Judgment:24 August 2010

JUDGMENT OF THE COURT

AThe appeal is allowed and the order made by the Court of Appeal set aside.
BThe appellant’s appeal against his conviction is remitted to the Court of Appeal for determination in accordance with s 385(1) of the Crimes Act 1961.

REASONS
(Given by Elias CJ)
[1] Peter Morrison Petryszick, who had been convicted on indictment of assault using a vehicle as a weapon,[1] appealed against his conviction to the Court of Appeal. His appeal required determination in accordance with the provisions of the New Zealand Bill of Rights Act 1990 and the Crimes Act 1961. As a “minimum standard of criminal procedure”,[2] everyone convicted of an offence has the right under s 25(h) of the New Zealand Bill of Rights Act “to appeal according to law to a higher court”. Section 25(h) is based upon article 14(5) of the International Covenant on Civil and Political Rights which provides that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”. In New Zealand, this minimum standard is fulfilled for those convicted on indictment by s 383 of the Crimes Act. It permits any person convicted on indictment to appeal to the Court of Appeal. Section 388 requires notice of appeal to be given “in such manner as may be directed by rules of court within 28 days after the date of conviction” or, if the person convicted is sentenced at a later date, “not later than 28 days after the date of sentence”. The “rules of court” referred to are defined as those made under s 409 of the Crimes Act and s 51C of the Judicature Act 1908.[3] Once an appeal is properly brought in accordance with ss 383 and 388, it must be determined under s 385 of the Crimes Act, except in the special cases provided for by the legislation. None of the special cases applied to Mr Petryszick’s appeal. It required determination by the Court of Appeal in accordance with s 385.
[1]Crimes Act 1961, s 202C(1)(a).
[2]As the rights contained in it are described in the heading to s 25 of the New Zealand Bill of Rights Act 1990.
[3]Crimes Act 1961, s 379.
[2] Under s 385(1)[4] the Court of Appeal must allow an appeal if it is of the opinion that one of four grounds specified is made out, unless it considers that no substantial miscarriage of justice has actually occurred (in application of the proviso to s 385(1)). If not of the opinion that one of the four grounds is…

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 Petryszick v R

Details

AGLC: Petryszick v R [2010] NZSC 105
Case: [2010] NZSC 105
Decision Date: 24 August 2010

CaseChat Overview and Summary

Petryszick appealed to the Supreme Court of New Zealand against the Court of Appeal's dismissal of his appeal against his conviction for assault using a vehicle as a weapon. The appeal required determination under the New Zealand Bill of Rights Act 1990 and the Crimes Act 1961. The issue on appeal was whether Petryszick was denied an effective appeal against conviction, as required by s 25(h) of the New Zealand Bill of Rights Act and in accordance with ss 383 and 385 of the Crimes Act by reason of the Court of Appeal's dismissal of his appeal on procedural grounds. The Supreme Court held that Petryszick was denied that right and that his appeal must be reheard. The Court of Appeal had jurisdiction to dismiss the appeal for deficiencies in its prosecution by the appellant only if it was done under the inherent or implied authority of the Court to prevent abuse of its process. However, the Court of Appeal did not determine Petryszick's appeal in application of s 385(1), as it was obliged to do. The appeal was dismissed on procedural grounds, rather than on the basis of the merits of the appeal. The appeal must be sent back for rehearing.

Orders