Police v Burrows
[2020] NZHC 930
•7 May 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-9
[2020] NZHC 930
BETWEEN NEW ZEALAND POLICE
Applicant
AND
WAYNE JOHN BURROWS
Respondent
On the papers Counsel:
A R T Garrick and N Azam for Applicant W J Burrows in person
Judgment:
7 May 2020
JUDGMENT OF CHURCHMAN J
Introduction
[1] On 13 March 2017, Mr Burrows (the respondent) was charged with two counts of criminal harassment under s 8(1)(b) of the Harassment Act 1997. On 27 July 2017, District Court Judge Sainsbury ordered an assessment report on the respondent under ss 38(1)(a) and (b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act). Following this, a number of adjournments and procedural issues delayed the case, until 19 December 2019, where District Court Judge Mill granted a stay of proceeding to the respondent on the basis that Judge Sainsbury had no jurisdiction to order a s 38 report in his 27 July 2017 ruling, because the respondent was not “in custody”, as required under s 38(1) of the CPMIP Act.1 Judge Mill ruled that the CPMIP procedure had caused a delay that was undue and unjustified, and that consequently, a stay of proceedings should be ordered as a remedy.2
1 Police v Burrows [2019] NZDC 25097 at [57].
2 Police v Burrows, above n 1, at [66]-[70].
NEW ZEALAND POLICE v BURROWS [2020] NZHC 930 [7 May 2020]
[2] The New Zealand Police (the applicant) now seek leave to bring an appeal under s 296 of the Criminal Procedure Act 2011 (CPA) on two grounds:
(a)whether the District Court Judge was correct to find that the respondent was not “in custody” at the time the s 38 report was ordered; and
(b)if so, whether a stay was the appropriate remedy.
[3]The respondent opposes leave to appeal.
[4] For the reasons set out in this decision, I conclude that both grounds of appeal are questions of law for the purposes of s 296 of the CPA, and that under the factors set out in R v Leonard (discussed below), leave to appeal should be granted.
Background
Factual background
[5] The two criminal harassment charges against the respondent relate to his interactions with a single complainant, A, who formed a friendship with the respondent through a bridge club in 2008. After A moved to Wellington in 2013, the respondent began to send her unsolicited letters, postcards and emails. From 7-14 March 2016, A received a number of postcards from the respondent, which contained a number of insulting and derogatory comments.
[6] On 21 November 2016, A encountered the respondent (who tried to approach her and later yelled at her) at Auckland Airport. A applied for a restraining order in 2016, but this was not granted until March 2017.
[7] On 14 February 2017, the respondent allegedly sent 18 pages of emails to A that contained more insulting and derogatory comments. It is also alleged that on 17 February 2017 the respondent approached A on her way to work in central Wellington and that when he saw her he yelled abusive comments at her.
District Court procedural history
[8] The procedural history of this case is lengthy, and due to a number of adjournments and appeals, it has progressed at what District Court Judge Mill described as a “glacial” pace.3 In his 19 December 2019 decision, Judge Mill attached an appendix detailing the procedural history of the case so far. A copy of that is attached as an appendix to this decision. I will now briefly set out the key procedural events.
[9] The respondent’s first appearance on the two charges of criminal harassment was in the District Court at Wellington on 13 March 2017. He was granted bail. He appeared again on 27 March 2017, at which time the Judge ordered a s 38 report under the CPMIP Act.
[10] This was completed by Dr Barry-Walsh on 5 May 2017. While he concluded that the respondent did not have an available defence of insanity and that he was fit to stand trial, Dr Barry-Walsh did note the existence of some underlying mental health issues and that it was possible that the respondent’s mental state might yet deteriorate to a point where his fitness might be affected.
[11] At a case review hearing on 27 July 2017, Mr Burrows’ attendance was excused. At this time, the Court Mental Health Liaison Officer advised of concerns about a possible deterioration in Mr Burrows’ mental health. It was at this point in which the presiding Judge, Judge Sainsbury, ordered an updated report pursuant to s 38 of the CPMIP Act.
[12] Dr Barry-Walsh provided this updated report on 21 September 2017, again concluding that Mr Burrows did not have a defence of insanity and was fit to stand trial. Two adjournments were subsequently granted in order for defence counsel to consider their position in light of the updated reports.
3 Police v Burrows, above n 1, at [14].
[13] On 26 October 2017, Judge Mill gave a decision that the procedure pursuant to s 9 of the CPMIP Act was triggered, noting that Mr Burrows was likely to be self- represented. The hearing was scheduled to occur on 23 November 2017.
[14] The substantive s 9 hearing did not occur on 23 November 2017 as Mr Burrows indicated that he required the complainant and other witnesses to be present for the purposes of cross-examination. Judge Hobbs heard argument on this point and issued a reserved judgment on 8 December 2017 declining Mr Burrows’ application for viva voce evidence to be called.
[15] Mr Burrows’ appeal of this decision was heard on 9 May 2018, Ellis J issuing a judgment on 4 July 2018 dismissing the appeal.
[16] On 24 October 2018, I dismissed an appeal against an earlier decision of Judge Davidson making a restraining order against the respondent.
[17] On 12 February 2019, Judge Butler delivered a judgment under s 9 of the CPMIP Act, ruling that the s 9 involvement inquiry was made out and ordering a further s 38 report from a second health assessor for the purposes of the s 14 fitness inquiry. An appeal against this decision was dismissed by me on 29 May 2019.
District Court decision of Judge Mill
[18] On 19 December 2019, Judge Mill issued a judgment granting a stay of proceeding to the respondent on the basis that Judge Sainsbury had no jurisdiction to order a s 38 report in his 27 July 2017 ruling, because the respondent was not “in custody”, as required under s 38(1) of the CPMIP Act.4
[19] After considering the background to the case and the submissions of both parties, the Judge noted that the central question in deciding whether to grant a stay was “whether a fair trial is possible in light of the prejudice caused to the defendant by the delay”.5
4 Police v Burrows, above n 1, at [57].
5 At [18], citing CT v R [2014] NZSC 155 at [30].
[20] Section 25(b) of the New Zealand Bill of Rights Act 1990 (NZBORA), was then considered by the Judge. Where s 25(b) is breached, following Williams v R, a stay may be granted as a remedy.6 The Judge acknowledged that there is a two-step test to determine whether proceedings ought to be stayed in order to remedy a breach of the s 25(b) right to be tried without undue delay.7 First, the applicant must prove that the delay was in fact undue. Second, the applicant must prove the delay was so egregious that a stay is justified as no other remedy would suffice.
[21] In considering these two elements, the Judge held that the delay was not undue or unjustifiable under the grounds set out in Williams v R.8
[22] However, the Judge did find that the ordering of the s 38 report on 27 July 2019 was not made in accordance with the CPMIP Act, in that a person who is not in attendance at a hearing is not in the custody of the Court, such that the Court has jurisdiction to order a report under s 38 of the CPMIP Act. Consequently, the Judge accepted the respondent’s submission that the delays in the case from 27 July 2017 were largely occasioned by a procedure which has been commenced without proper jurisdiction.9
[23] According to the Judge, while the “substantial systemic delay” in the circumstances would not have been undue if the s 38 process had been legitimately engaged, this was not the case here.10 Instead, the delay had been occasioned by a procedure that was “almost certainly without jurisdiction”.11 As a result, the delay was undue, unjustified and egregious, justifying a stay:12
[64] So there has been a substantial systemic delay but not unduly so during the process if it had been legitimately engaged but that procedure was almost certainly without jurisdiction. His failure to apply for judicial review in the intervening years in my view does not detract from the consequent unjustifiable delay.
[65] Delays occasioned by Mr Burrows’ appeals would not have been necessary had the orders not been made.
6 Williams v R [2009] NZSC 41.
7 R v Vaihu [2010] NZCA 145 at [126]; Williams v R, above n 6.
8 Police v Burrows, above n 1, at [43].
9 At [59].
10 At [64].
11 At [64].
12 At [64]-[66].
[66] In my view, given my acceptance of his submissions on these matters I find that the delay occasioned by the CP(MIP) Act procedure has been undue and unjustified and in my view, egregious.
Position of the parties
The applicant
[24] Counsel for the applicant seeks leave to appeal the decision of Judge Mill to grant a stay of proceedings. Two grounds are advanced:
(a)whether the District Court Judge was correct to find that the respondent was not “in custody” at the time the s 38 report was ordered; and
(b)if so, whether a stay was the appropriate remedy.
[25] Before detailing their specific submissions for each ground, counsel for the applicant addressed the question of jurisdiction to appeal the decision of Judge Mill under s 296 of the CPA. Counsel submitted that under s 296(3)(b), a prosecutor may, with leave of the first appeal court, appeal on a question of law against a ruling by the trial court, and that the question of law must arise in the proceedings that relate to or follow the determination of the charge, or in determination of the charge (which explicitly includes stays).13 Counsel submitted that both of the proposed grounds of appeal constituted questions of law under s 296(3)(b).
[26] With regard to the first ground, counsel submitted that it constituted a question of law on the basis that it concerned interpretation of a statutory provision, namely s 38 of the CPMIP Act. According to counsel, the ground arises as a “determination of the charge” under s 296(3)(b) of the CPA, because Judge Mill’s determination that the District Court lacked proper jurisdiction when ordering a s 38 report on 27 July 2017 when the respondent was potentially not “in custody” was central to his finding that the resulting delays from the CPMIP process were so undue, unjustified and egregious as to justify a stay.
13 Criminal Procedure Act, s 296(3)(b).
[27] Following their submission that the first ground constituted an error of law under s 296(3)(b), counsel set out three main factors supporting a grant of leave to appeal under this ground. Firstly, counsel submitted that this ground was a novel question of general importance. Specifically, the issue of whether a person not present in Court is “in custody” for the purposes of s 38 of the CPMIP Act has wide implications for the Courts, and according to counsel, no authority exists on this particular matter. Counsel referred to Togia v Police, where the Court of Appeal deal with a similar question of law: whether a person is “in custody” for the purposes of s 38 if they are on bail, but present in Court at the time the s 38 report was ordered.14 The Court of Appeal found that to limit a Court’s power under s 38 to exclude those on bail would create a “substantial lacuna” in the operation of s 38.15 Counsel submitted that the circumstances give rise to a similarly important issue here, in that the interpretation of “in custody” by Judge Mill could create a “substantial lacuna” in the operation of s 38.
[28] The second factor in support of granting leave to appeal on the first ground was that the merits of the proposed appeal were strong. This argument was based on the propositions that:
(a)in Togia v Police, the Court of Appeal approved the High Court’s interpretation that a person who appears on bail is in the custody of the Court for the purposes of s 38 because they are under the supervision of the Court at that time, which supports the applicant’s argument that the respondent was in custody;
(b)the plain meaning of the phrase “in custody” is capable of including a person whose absence has been excused by the Court but is being represented by their counsel at their criminal proceeding;
(c)it would frustrate the purpose and operation of the CPMIP if the respondent was not deemed to be “in custody” in these circumstances; and
14 Togia v Police [2012] NZCA 544.
15 Togia v Police, above n 14, at [16].
(d)a purposive approach to statutory interpretation requires a more expansive interpretation to be given to “in custody” than that adopted by Judge Mill.
[29] The final factor put forward by counsel was that there was no alternative remedy, as no other appeal or review process for Judge Mill’s interpretation of “in custody” under s 38 of the CPMIP was available.
[30] With regard to the second ground, counsel submitted that it constituted a question of law because it raised the issue of whether Judge Mill applied the correct test when granting a stay. Counsel referred to R v Vaihu as an analogous case whereby a similar issue was framed by the Court of Appeal as a question of law:16
[22] Here, the question asks whether a stay was the correct remedy, given the Judge's factual finding of undue delay. The task is not to ask whether something in fact happened, or whether something can be inferred from the facts. The question is the legal consequence of facts as found by the Judge. To put this another way: given the undue delay and all the surrounding circumstances — which could be described as questions of fact — is the question whether a stay is a reasonable and proportionate response a question of law? This division of the inquiry corresponds to what is generally seen to be the correct approach for remedies for breaches of s 25(b) of the New Zealand Bill of Rights Act 1990.
[23] At least for the purposes of this provision we are of the view that whether the remedy granted was the appropriate one is a question of law. There are parallels in other areas of the law. For instance, in the civil law there might well be an argument as to whether damages or specific performance is the appropriate relief for a found breach of contract. The Court might conceivably, having identified the breaches, take the view that the degree of personal supervision that would be required of the Court is such that there should not be an order for specific performance. It is difficult to see why such a determination would not amount to a question of law, for the legal consequences of facts as found by a Judge have long been regarded as a conventional question of law.
[24] In the result, we take the view that there is a question of law for determination by this Court.
[31] Counsel then set out four factors supporting a grant of leave to appeal under the second ground. Firstly, that there was an identifiable error of law. It was submitted that Judge Mill rightly noted CT v R, where the Supreme Court set out a range of factors relevant to the assessment of whether a fair trial was possible in light of the
16 R v Vaihu [2010] NZCA 145 at [22]-[24].
prejudice caused to the respondent by delay.17 Furthermore, Judge Mill also acknowledged that following R v Antonievic, a stay was an “extreme step only to be taken in the clearest of cases”.18 However, counsel submitted that Judge Mill failed to consider any of the factors set out in CT v R when considering a stay, and that these circumstances did not fall into the category of the “clearest of cases”.
[32] Secondly, counsel submitted that the Judge erred in placing weight on an irrelevant matter, namely by considering the time the respondent had spent on restrictive bail during the delay as a factor in granting a stay, when the Supreme Court in Williams v R had observed that the more appropriate remedy where there has been undue delay of a trial (unless the delay was egregious) was a reduction in the term of imprisonment.19
[33] Thirdly, counsel submitted that Judge Mill failed to give weight to relevant considerations. These included the fact that the delays had often been caused by the respondent himself, and that the respondent had not sought judicial review of Judge Sainsbury’s 17 July 2017 decision to order a s 38 report, despite the respondent having sought judicial review of other decisions made in the CPMIP process. According to counsel, this has allowed the respondent to draw out the proceedings for as long as possible through sequential challenges to decisions and then subsequently use that delay to support a stay.
[34] Finally, counsel submitted that, as with the first ground, there is no alternative remedy or review process other than this appeal.
The respondent
[35] The respondent (representing himself) concurred with counsel for the applicant’s observation that applications for leave to appeal under s 296 of the CPA can only be made on questions of law.
17 CT v R, above n 5.
18 R v Antonievic [2013] NZCA 483 at [54].
19 Williams v R, above n 6, at [18].
[36] In his response to the first ground advanced by counsel for the applicant, the respondent submitted that while the first ground was a question of law, the particular law pertaining to this question had already been settled. The respondent referred to Togia v Police, which he asserted supported the notion that a person who has surrendered to bail was in the custody of the Court. In particular, the respondent relied on the observations of Dobson J at [21] and [26], as well as the Court of Appeal’s ultimate decision to uphold Clifford J’s interpretation in the High Court that when the appellant surrendered to his bail for the Court appearance at which a report was directed, he was in the custody of the Court.20
[21] The scope of the Court’s powers under s 38 is therefore to be analysed on the basis that if the pre-condition of the person being “in custody” excludes accused persons who have already been bailed, then there would be an absence of power on the part of the Court to require reports in those cases. When pressed, Mr Ellis acknowledged that such a gap in the Court’s powers to progress issues under CPMIP in this respect would be an unintended oversight by Parliament, rather than an intentional gap.
…
[26] Those other statutory references are consistent with a person required to be at Court to answer bail being in a form of custody of the Court, irrespective of whether they are constrained to a particular part of a courtroom or indeed cells attached to the Court.
[37] The respondent submitted that given the ruling in Togia v Police, and the fact that the order by Judge Sainsbury to commission a s 38 report was made in his absence when he had not surrendered to bail, he was not in custody of the Court when the order was made, and that this was settled law.
[38] In his response to the second ground advanced by counsel for the applicant, the respondent submitted that this ground was not a question of law, because the granting of a stay was an exercise of the Judge’s discretion that required a factual (rather than legal) assessment of a number of factors.
[39] According to the respondent, these factors included inaccurate information given to the Court,21 the respondent’s submission that the matter would be concluded
20 Togia v Police, above n 14, at [21], [26] and [32].
21 Police v Burrows, above n 1, at [50].
but for the ss 9 and 38 procedures slowing the hearing process,22 his submission that he had been on restrictive bail terms for longer than necessary,23 and that the charges (while not minor) were unlikely to give rise to a substantial penalty, particularly given that a restraining order had been issued at around the time of the offending.24
[40] The respondent characterised this assessment as “not a matter of law but of a factual assessment of the weight of each factor”, and referred to Adams on Criminal Law, which states:25
Consistent with the approach taken to s 78 [the predecessor to s 296], an appeal on a question of law during a judge-alone trial should be “reserved for special cases where true questions of law are involved”: see Alexander v Ministry of Agriculture and Fisheries HC Wellington AP181/92, 4 March 1993. It is generally undesirable to appeal on a question of law before all the relevant facts are ascertained: Police v Liddington (1987) 2 CRNZ 690 (HC), at 691; Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 (CA) at 202. See also Tipping J’s view in Police v O’Neill [1991] 3 NZLR 594 (HC) that a case should generally be stated under s 78 only if the question of law was clearly necessary for the decision and was likely to be decisive one way or the other.
Approach to appeal
[41]Section 296 of the CPA provides:
(1)This section applies if a person has been charged with an offence.
(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.
(3)The question of law in a first appeal under this subpart must arise—
(a)in proceedings that relate to or follow the determination of the charge; or
(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
(4)The question of law must not be one that—
(a)arises from a jury verdict; or
22 At [60].
23 At [61].
24 At [62].
25 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters) at [CPA296.03].
(b)arose before the trial and has already been decided under subpart 2.
[42] Therefore, as explicitly expressed in the statutory provision, an appeal under s 296 must be an appeal on a question of law against a ruling by the trial Court. Section 296 confers a right on the Crown to appeal a stay or discharge on a question of law because the effect of the stay or dismissal decision is to bring an end to the prosecution.26 In Lyttle v R, upon assessment of the relevant case law and the text and purpose of the provision, the Court of Appeal held that:27
The jurisdiction in s 296(3) is only likely to apply in relation to decisions dealing with a defendant's application to dismiss a charge or stay a prosecution where:
“(a)the prosecution wishes to appeal a trial court's decision dismissing a charge or staying a prosecution; or
(b) in rare cases where the defendant can demonstrate a trial court's decision has, effectively, resulted in a determination of the proceeding.”
[43] In this case, if they are indeed questions of law, the applicant’s grounds for appeal appear to fit within the first category of Lyttle v R.
[44] In Wilson v R, the Supreme Court observed that a trial Judge’s decision on whether or not to grant a stay is discretionary, meaning that in accordance with the approach that the appellate courts generally take to discretionary decisions, an appellate court would not interfere with a Judge’s decision that was reasonably open to him or her, even if that Court would reach a different conclusion considering the matter afresh.28 However, the Court also noted that the position may be different in the context of a stay, given the fundamental values at stake.29
[45] Finally, and more generally, in R v Leonard the Court of Appeal set out a non- exhaustive criteria of factors to be considered in determining whether leave to appeal
26 D (CA716/2015) v R [2016] NZCA 190 at [14].
27 Lyttle v R [2019] NZCA 329 at [35].
28 Wilson v R [2015] NZSC 189 at [27].
29 Wilson v R, above n 28, at [27]-[29].
before a trial should be granted. These factors were adopted in the more recent case of Hohipa v R.30 These are:31
[13]Factors pointing towards the granting of leave include:
(a)the argument is based on a novel point or is of significance for other cases;
(b)there is conflicting authority covering the issue to be determined on the proposed appeal;
(c)the application relates to an identified error of law;
(d)the application involves the admissibility of evidence that is important to one of the parties;
(f)the matter cannot be dealt with adequately in any appeal after the trial or there are only limited post-trial appeal right (as will often be the case for Crown applications); and
(g)the proposed grounds of appeal are arguable.
[14]Factors pointing towards refusing leave include:
(a)the issue will need to be revisited at trial or is best dealt with in the context of the trial;
(b)the application involves the admissibility of evidence that would not make a significant difference to the course of the trial and is unlikely to lead to post conviction appeal success;
(c)the issue is best dealt with in the context of any post conviction appeal;
(d)the application challenges a factual finding, especially where the finding rests on an assessment of credibility;
(e)the application challenges the exercise of a discretion. In such cases leave should not be granted unless there are grounds articulated which point to the fact that the judge has, in exercising his or her discretion, acted on some wrong principle, has given weight to extraneous or irrelevant matters, has failed to give sufficient weight to relevant considerations, or is plainly wrong;
(f)the appeal will cause unnecessary delay: for example where there is not time to hear the appeal before the trial commences or where it would unduly delay the trial; and
(g)the proposed appeal is without merit.
30 Hohipa v R [2015] NZCA 73 at [27].
31 R v Leonard [207] NZCA 452 at [13]-[14].
Relevant law and analysis
Ground one
[46] Both parties have accepted that this first ground is a question of law. The issue is whether this is a novel or significant point of law, or whether it is already settled following Togia v Police. Adams on Criminal Law notes that the expression “in custody” in s 38 of the CPMIP Act is undefined.32 However, following the case of Togia v Police (referred to in the submissions of both parties above), which overturned the earlier case of R v McKay,33 when a person on bail appears in Court, they are under the supervision of the Court and thus “in custody” for the purpose of s 38(1) when the report is ordered, even if they are to be admitted or re-admitted to bail.34
[47] Contrary to the submissions of the respondent, it cannot be said that the question posed in the first ground of the applicant’s appeal is settled law. While the ruling in Togia v Police clarifies the jurisdiction of the Courts to make orders under s 38 when a person is on bail but present in Court, the scope of the question in the first ground of this case is much broader. Effectively, the applicant seeks clarification on whether the interpretation of “in custody” is sufficiently broad so as to include a person who is physically absent from the Court at the time in which the report is ordered. This does not appear to be settled law, particularly given that the expression “in custody” is undefined.
[48] Consequently, the first ground can be considered a novel question of law which may have significance for other cases. Following R v Leonard, if an argument is based on a novel point or is of significance for other cases, then this is a factor pointing towards the granting of leave.35 Conversely, it must be acknowledged that the appeal may cause unnecessary delay (a factor pointing against leave to appeal in R v Leonard) to a case that has already taken a significant period of time to progress. However, as submitted by the counsel for the applicant, this is an issue where the applicant has no alternative remedy, and as discussed at [27] above, the grounds for appeal are arguable. These are two additional factors detailed in R v Leonard which point towards the
32 Adams on Criminal Law – Criminal Procedure, above n 25, at [CM38.03].
33 R v McKay [2009] NZCA 378.
34 Togia v Police, above n 14, at [26]-[32].
35 R v Leonard, above n 31, at [13].
granting of leave.36 Combined with this ground being a novel question of law which may have significance for other cases, the factors weigh in favour of granting leave to appeal. As a result, I conclude that leave should be granted on the first ground of appeal.
Ground two
[49] The respondent opposes counsel for the applicant’s submission that this second ground is a question of law. Consequently, the issue under this second ground is whether Judge Mill’s decision to grant a stay (and whether it was the appropriate remedy) is an exercise of discretion that entails a factual balancing of various considerations, or a question of law.
[50] In Brown v R, the Court of Appeal held that “questions of law” in the context of s 296(2) must raise one or more of three standard errors classified as creating a question of law:37
(a)a misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);
(b)oversight of a relevant matter, or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
[51] In R v White, Nation J noted that in most cases a decision by a Judge in the exercise of a discretion will not raise a question of law (although a decision as to whether the discretion exists or whether the conditions for its exercise are met does raise a question of law).38 Nation J then went on to observe:39
[22]In H v Police, MacKenzie J followed the stance of the Court of Appeal in R v Lutomski in stating that the process of weighing of factors in the exercise of judicial discretion does not involve a question of law.
[23]In Gray v Thom, Penlington J held that:
36 At [13].
37 Brown v R [2015] NZCA 325 at [16] (citations omitted).
38 R v White [2015] NZHC 1654 at [20].
39 R v White, above n 38, at [22]-[23] (citations omitted).
… an appellate Court will be slow to interfere with the exercise of a discretion in relation to an adjournment. An adjournment will only be granted for good reason. The ultimate issue is the need to do justice between the parties; that is both parties. The question can be simply stated: is an adjournment expedient in the interests of justice?
[52] The respondent’s submission on the second ground characterises it as a question concerning the weighing of factors in the exercise of judicial discretion, which following R v White (and the authorities cited in the Adams on Criminal Law excerpt referred to by the respondent at [40] above), does not give rise to a question of law.
[53] However, this case is arguably similar R v Vaihu (discussed at [30] above), where a similar ground of appeal, namely the question of whether a stay was an appropriate remedy, was considered to be a question of law. Also, as submitted by the applicant (at [32]-[33] above), the second ground of appeal raises a potential error by the Judge of oversight of a relevant matter, or consideration of an irrelevant matter, which under category (b) in Brown v R, creates a question of law.
[54] Finally, the observations of the Supreme Court in R v Wilson are arguably relevant here, in that while the decision of a trial Judge may be an exercise of discretion, the principle of appellate courts not interfering with that decision even if they would have reached a different decision is not necessarily applicable in the context of a stay, given the fundamental values at stake.40
[55] As a result, I conclude that the second ground constitutes a question of law. This ground addresses a potential error of an oversight by Judge Mill of relevant matters/consideration of irrelevant matters under category (b) of Brown v R. There is also no alternative remedy. Both of these factors point towards granting leave to appeal under R v Leonard.
[56]Therefore, leave to appeal under this ground should be granted.
40 Wilson v R, above n 28, at [27]-[29].
Conclusion
[57] Because both grounds of the applicant’s appeal are questions of law for the purposes of s 296, and because the factors in R v Leonard point in favour of granting leave, leave to appeal should be granted for both grounds of the applicant’s appeal.
Churchman J
Solicitors:
Crown Solicitor, Wellington for Crown cc: W J Burrows
Appendix
10March 2017 Judge Davidson made a restraining order against Mr Burrows in respect of A.
13March 2017 Police file charges against Mr Burrows and he appears before the Court for his first appearance. He is granted bail.
27March 2017 Mr Burrows is granted bail to 31 March 2017 and the Court is advised he is seeking a bail variation. Judge Barry ordered a s 38 screening report on 31 March 2017. Mr Burrows applied for, and received, a bail variation regarding travel restrictions against Police opposition.
5 May2017 Dr Barry-Walsh completed a s 38 report, as ordered by Judge Barry. The report concluded Mr Burrows was fit to stand trial.
22 May2017 Mr Burrows appeared before the Court. He sought further time to consider this position and he unsuccessfully sought a further bail variation, orally, to enable him to allow unrestricted travel to Wellington.
29 May2017 Mr Burrows’ attendance was excused as he was evicted from the Court by security staff. Not guilty pleas were entered by his counsel Ms Caris, and a case review hearing scheduled for 27 July 2017.
6July 2017 Mr Burrows filed a formal written application to vary his bail to be heard on 10 July 2017.
10July 2017 No appearance by Mr Burrows or Ms Caris. Bailed to 27 July 2017.
17July 2017 Bail variation was declined by Judge Mill. The hearing had been brought forward at counsel’s request.
27July 2017 Mr Burrows’ attendance had been excused. A possible deterioration of his mental health was raised by his then counsel, and the Court mental health liaison officer. Judge Sainsbury ordered an updated s 38 report to consider Mr Burrows’ fitness to plead.
21 September 2017 Dr Barry-Walsh provided an updated s 38 report, reaching the same conclusion that Mr Burrows was fit to stand trial.
26 September 2017 The case was adjourned to allow Mr Burrows’ then counsel to consider their position in light of the recent s 38 report.
19 October 2017 The case was further adjourned to 26 October 2017.
26 October 2017 Judge Mill gave a decision that s 9 of the CP(MIP) Act had been triggered by the ordering of the report by Judge Sainsbury on 27 July 2017. Bail was also varied regarding travel restrictions.
23 November 2017 Judge Hobbs heard Mr Burrows’ application for a s 92 Criminal Procedure Act 2011 oral evidence order for the s 9 hearing. Judge Hobbs reserved his decision. Mr Burrows was now representing himself.
7 December 2017 Judge Hobbs declined the s 92 oral evidence application.
8 December 2017 Mr Burrows remanded on bail to 1 February 2018 for half-day s 9 hearing.
20 December 2017 Judge Mill reserved judgment refusing Mr Burrows’ application to obtain a copy of the complainant’s Victim Impact Statement.
1 February 2018 Hearing scheduled for a s 9 CP(MIP) Act hearing. The hearing was adjourned part-heard to 13 March 2018.
13March 2018 The s 9 hearing was further adjourned to await the outcome of Mr Burrows’ appeals against the decisions of Judge Hobbs and Judge Mill. New date scheduled; 24 April 2018.
19April 2018 Judicial review hearing set for 24 April 2018 therefore the present matter needed to be rescheduled. Adjournment by consent directed to 2 May 2018.
2 May2018 The s 9 hearing was further adjourned awaiting appeal outcomes.
9 May2018 The judicial review applications in respect of Judge Hobbs and Judge Mills was heard by Ellis J.
13June 2018 The s 9 hearing was further adjourned awaiting appeal outcomes.
29 June 2018 Further adjourned administratively.
4July 2018 Justice Ellis delivered judgment, dismissing the judicial review applications in respect of the decisions of both Judge Mills and Judge Hobbs.
5 September 2018 The s 9 hearing resumed and it was adjourned to the following day as there was insufficient time. Bail was also varied against Police opposition. An application was made by Mr Burrows for dismissal of the charges pursuant to s 147 of the Criminal Procedure Act. This application remains unheard.
6 September 2018 The s 9 hearing continued.
1October 2018 The matter was called to confirm the parties had received the notes of evidence and Judge Butler requested written submissions about “accosted” and “sending emails” to be filed by 14 October 2018.
12 October 2018 Mr Burrows sought an extension of time for filing submissions. An extension was granted and submissions by Mr Burrows were stipulated to be filed by 2 November 2018. That date was again extended to 5 November 2018 to recognise a public holiday in the calculation of ten working days.
17 October 2018 Submissions filed by the Police.
18 October 2018 Mr Burrows’ appeal against the decision of Judge Davidson ordering a restraining order was heard.
24 October 2018 Justice Churchman delivered judgment, dismissing the appeal. 6 November 2018 Submissions were filed by Mr Burrows.
12 February 2019 Judge Butler delivered judgment, satisfied that the s 9 involvement inquiry was made out. He ordered a further s 38 report from a second health assessor for the purposes of the s 14 fitness inquiry.
13 March 2019 Mr Burrows filed an appeal against Judge Butler’s decision. 29 May 2019 Justice Churchman heard and dismissed the appeal.
16July 2019 Bail to continue until 26 September 2019 when the s 14 CP(MIP) Act hearing is scheduled to occur. One day is allocated. In-chambers discussion occurred before Judge Tuohy. His Honour re-directed the order of Judge Butler for a further s 38 report from a second health assessor.
26 September 2019 The matter was called, but neither Mr Burrows nor the Court had been provided with a copy of the s 38 report.
23 October 2019 Matter called so parties could discuss the nominal date offered for the s 14 CP(MIP) Act hearing. Date of 20 February 2020 proposed suited the Court and the prosecution but not Mr Burrows who advised he would be out of the country during that time. The likely date is in March 2020.
1 November 2019 Mr Burrows files an application for a stay.
8 November 2019 The Police advised their opposition to the stay application and, due to leave, would only be able to prepare submissions from 18 November.
27 November 2019 Mr Burrows’ application for stay heard and Judge Mill reserved his decision.
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