Pritchard v Police - [2020] NZHC 3363

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000033

[2020] NZHC 3363

BETWEEN
JADE PRITCHARD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 December 2020

Appearances:

Caitlin Oxnam and Genevive Vear for the Appellant Lydia Wilson for the Respondent

Judgment:

16 December 2020

JUDGMENT OF MOORE J

[Appeal against conviction]

This judgment was delivered by me on 16 December 2020 at 4:00 pm.

Registrar/ Deputy Registrar Date:

PRITCHARD v NEW ZEALAND POLICE [2020] NZHC 3363 [16 December 2020]

Introduction

[1] On 17 September 2019, Jade Pritchard was convicted on one charge of burglary by Judge L Tremewan, following a Judge-alone trial in the Wāitakere District Court.

[2]Mr Pritchard appeals his conviction on the grounds:

(a)he was unable to make an informed decision whether to give evidence; and

(b)he was not able to make an informed decision whether to call any witnesses in support of his defence.

[3]The Police say the appeal should be dismissed because:

(a)Mr Pritchard was properly advised on the questions of giving evidence and calling witnesses; and

(b)in any event, a different election on those decisions would not have affected the outcome of the trial.

[4] We must allow Mr Pritchard’s appeal if we are satisfied that, for any reason, a miscarriage of justice has occurred.1

Extension of time for leave to appeal

[5] A notice of appeal must be filed within 20 working days after the date of sentence for the conviction appealed against or with leave of the Court.2 The time allowed for filing any such notice may be extended at any time by the first appeal Court.3

[6] Sentencing took place on 25 November 2019. The notice of appeal was required to be filed no later than 23 December 2019. Mr Pritchard’s appeal was not

1      Criminal Procedure Act 2011, s 232(2).
2      Section 231(2).
3      Section 232(3).

filed until 30 January 2020. He thus requires leave of the Court to extend the time for filing.

[7] The “touchstone” for granting an extension is whether it is in the interests of justice.4 The Court of Appeal recently condensed the principles of extension to two questions; first, why the proposed appeal was filed late and, secondly, whether it has merit.5 Kós P stated that in reality, the second question will be determinative of the interests of justice.

[8] Mr Pritchard has filed evidence explaining the reason for the delay. He says he incorrectly believed his trial counsel had filed an appeal.

[9] The application of the relevant principles dictates a grant of leave. The delay was not significant and Mr Pritchard has given a legitimate and uncontradicted explanation. The appeal has merits. Furthermore, there is no prejudice to the Crown in granting leave and it is not opposed. Leave is granted.

The facts of the offending

[10] Mr Pritchard worked for a distribution warehouse company which supplies products to industrial customers. Outside business hours the warehouse is locked and access is by key and a…

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.

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Details

Case: [2020] NZHC 3363
Decision Date: 16 December 2020

CaseChat Overview and Summary

Jade Pritchard appeals his conviction for burglary by the Wāitakere District Court. He contends that his trial counsel's advice led to him making uninformed decisions not to give evidence and not to call witnesses in his defence. The police oppose the appeal, arguing that any errors made by counsel did not result in a miscarriage of justice. The court must allow the appeal if it is satisfied that a miscarriage of justice has occurred. In granting leave for the late filing of the appeal, the court notes the delay was not significant, and the appeal has merit. The trial judge found Mr Pritchard guilty based on circumstantial evidence, including CCTV footage, the possession of a key and access code, and an item of similar size to the stolen goods. The judge found that Mr Pritchard had the means and knowledge to commit the burglary and that his explanation for the item left at the police officer's home was unconvincing. The court finds that Mr Pritchard was not provided with adequate advice regarding his decision not to give evidence, particularly in light of the uncontradicted evidence against him. The court holds that the failure to prepare a brief of evidence, the overly optimistic assessment of the defence's strength, and the absence of a contemporaneous record of the factors influencing the decision not to give evidence all contributed to an uninformed decision. The court concludes that a miscarriage of justice has occurred and allows the appeal. The matter is remitted to the District Court for rehearing.

Orders