Police v Burrows - [2020] NZHC 930

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…

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 Police v Burrows

Details

AGLC: Police v Burrows [2020] NZHC 930
Case: [2020] NZHC 930
Decision Date: 7 May 2020

CaseChat Overview and Summary

In Police v Burrows, the New Zealand Police sought leave to appeal a decision of the District Court to stay criminal proceedings against the respondent on the basis of undue delay. The substantive charges against the respondent were two counts of criminal harassment under s 8(1)(b) of the Harassment Act 1997. The Police argued that the District Court had erred in finding that the respondent was not "in custody" at the time a s 38 report was ordered, and that the Court had failed to apply the correct test when granting a stay of proceedings. The respondent opposed leave to appeal.

The High Court found that both grounds of appeal were questions of law for the purposes of s 296 of the Criminal Procedure Act 2011, and that under the factors set out in R v Leonard, leave to appeal should be granted. The first ground was a novel question of law concerning the scope of the expression "in custody" in s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The second ground involved a potential error of law in the exercise of the Court's discretion to grant a stay of proceedings.

The Court concluded that the factors in R v Leonard pointed in favour of granting leave to appeal on both grounds. The first ground was a novel question of law that may have significance for other cases, and the second ground involved a potential oversight of relevant matters or consideration of irrelevant matters by the District Court. As the grounds for appeal were arguable and there was no alternative remedy, leave to appeal should be granted.

Orders