R v Moody CA318/06

[2006] NZCA 509

ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL DATE SPECIFIED IN ORDER C.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA318/06

THE QUEEN

v

RICHARD ALLAN MOODY

Hearing:         29 November 2006

Court:            Chambers, Randerson and Potter JJ Counsel: D R James for Applicant

A M Powell for Crown

Judgment:      4 December 2006         at 3 pm

JUDGMENT OF THE COURT

A        The application for leave to appeal is dismissed for want of jurisdiction.

B        An order is made that the District Court complete its hearing of the

Crown’s application for an extension of time for filing an indictment.

CAn order is made that this judgment and the reasons therefor are not to be  published  in  the  news  media  or  on  the  internet  or  in  any  other publicly accessible database until:

R V MOODY CA CA318/06  4 December 2006

(a)       if there is a trial, that trial is concluded; or

(b)      if there is not a trial (because the District Court declines leave to extend time for filing an indictment), that District Court decision is made.

In the meantime, however, publication in a law report or law digest is permitted.

REASONS OF THE COURT

(Given by Chambers J)

[1]      This application for leave to appeal purports to be brought under s 379A of the Crimes Act 1961.   Richard Moody, the applicant, seeks to upset a decision of Judge D J McDonald dismissing his application for: (a) an order that proceedings against him be stayed; or (b) an order that no indictment be filed; or (c) an order that no order be made extending the time for filing the indictment.

[2]      It turns out, however, that this court does not have jurisdiction to consider Mr Moody’s application for leave to appeal.  In order to explain why, we need to set out the procedural history in some detail.

[3]      A complaint was made to the police in May 2004.  The police laid charges against Mr Moody in June 2005.  They alleged that he had committed various sexual offences against the complainant in a period between 1956 and 1966.

[4]      Following a preliminary hearing on 8 December 2005, Mr Moody was committed for trial.   Under s 345A of the Crimes Act, the Crown Solicitor was required to file an indictment within a specified period.   That period expired on

13 February 2006.  An indictment was not filed within that period.

[5]      Section 345B provides that an application may be filed to extend the time for filing an indictment.  The Crown Solicitor purported to file such an application on

27 March 2006.  At the same time, he filed a draft indictment, indicating the form of indictment which would be filed if time for filing were extended.

[6]      We say that the Crown Solicitor purported to file a s 345B application as the application did not conform with the requirements of s 345B.  It did not “include a statement of the reasons for seeking an extension” and it did not “specify the period for  which the  extension  is  sought”:  subs  (4).    The  application  was  nonetheless accorded a hearing date of 31 May 2006.

[7]      This application prompted Mr Moody to file a counter-application, namely the application referred to in [1] above.   That application was accorded the same hearing date as the Crown’s.  The essential ground of Mr Moody’s application was that he could not now get a fair trial owing to the long time that had elapsed since the alleged offending, which he denied.  The stay application (application (a)) sought to engage the District Court’s implied power to prevent abuse of its processes.   The application that no indictment be filed (application (b)) was brought  pursuant to s 347 of the Crimes Act.  The third application, namely for an order that no order be made extending the time for filing the indictment, was in reality no more than a notice of opposition to the Crown’s application under s 345B.

[8]      The applications came on for hearing on 31 May.   According to counsel, Judge McDonald said at the start of the hearing that the crucial issue was whether it would be an abuse of process for the case to proceed against Mr Moody, given the long delay since the alleged offending.   Counsel apparently agreed that  was the crucial issue and the hearing proceeded on that basis.

[9]      Judge McDonald delivered a reserved decision on 24 August: DC KAIH T05629.  In that decision, His Honour did not refer to the Crown’s application at all. At [6] of his decision, he described the application before him simply in terms of Mr Moody’s application.  At the end of the judgment, he set out the “Result” in the following terms:

[48]      The application for a stay is dismissed.   Leave has already been given to file an amended indictment.  There has been no breach of s 25(b) of the New Zealand Bill of Rights Act.

[10]     That  “result”  has  caused  some  problems.    First,  while  it  is  clear  that Mr Moody’s stay application was dismissed, the judge did not expressly deal with his application under s 347 that no indictment be filed.  It is only by implication that one can infer that the s 347 application too was dismissed.

[11]     Secondly, the judge did not deal with the Crown’s application to extend time under s 345B.   There was no application “to file an amended indictment”, an application which would have had to be brought under s 345D, not s 345B.  It may be that His Honour meant “an out of time indictment”, rather than “an amended indictment.”  But, even if he did mean that, counsel confirm that it is not correct that leave had already been given to file out of time.  We have caused the District Court file to be searched and there is no record of any such leave having previously been given.  We suspect that, with the passage of time between hearing and decision, the judge made a mistake and thought that he had previously granted leave to extend time, when he had not.

[12]     We have considered whether we could treat what was said as if it were a s 345B order.  But we have concluded that is not possible.  Apart from anything else, s 345B envisages that a specific period of extension will be ordered.  It would not be right for us to specify a period, especially in circumstances where the Crown has not, as a matter of fact, filed the indictment since the 24 August decision.  It is common ground that the only indictment on the court file is the draft submitted with the s

345B application back in March.

[13] Through oversight, therefore, the Crown’s application remains undetermined. Clearly in those circumstances neither party can at this stage seek to appeal against an order which has yet to be made. We direct that the District Court should complete its hearing of the Crown’s application. The Crown would be well advised to correct the errors in it, as set out at [6] above.

[14]     Mr James, for Mr Moody, accepted that we have no pre-trial jurisdiction to review an order refusing a stay.  Mr James also accepted that he could not pursue the application for leave to appeal so far as it concerned the original application (b), seeking an order that no indictment be filed.  This was for two reasons.   First, the judge never ruled on that application.  Secondly, in any event, any decision on that application would have been made under s 347, from which there is no right of appeal.

[15]     Before we worked out that we lacked jurisdiction, we heard some argument, particularly from Mr James, as to the scope of s 345B.  This is not the occasion in which to deal in any detail with those submissions, as the s 345B application remains to be determined.   But we observe, for the benefit of the judge who will have to determine that application, that we have considerable reservations about the correctness of Mr James’s interpretation of that section.

[16]     In essence, Mr James’s submission was that, because s 345B(1) refers to “the interests of justice”, that brings into the mix all the considerations which would be the focus of a stay application or  an application under  s 347.    On Mr  James’s analysis, it did not matter that there is no pre-trial chance of appeal against a refusal to stay or against an unfavourable s 347 decision; he effectively got his right of appeal under s 345B, which can be the subject of an application for leave under s

379A.  We doubt that approach is correct.

[17]     Mr  James’s  concern  relates  to  the  lengthy  period  between  the  alleged offending and the laying of charges.   Such a delay is properly the focus of a stay application or a s 347 application.  Unfortunately for Mr Moody, he has lost on those parts of his application and there is no chance of a pre-trial appeal from that ruling. If that ruling is wrong, then the time for its review is on a post-conviction appeal: R v B [1995] 2 NZLR 172, especially at 180 (CA).

[18]     The primary focus of s 345B is on the period between the date on which the indictment should have been filed and the date of the application to extend time.  The court is primarily concerned to see why the indictment was not filed within time, as the considerations set out in subs (2) make clear.  At the moment, we do not know

why the Crown Solicitor in this case did not file the indictment on time, as his application contains no explanation for the delay.  All we do know is that Mr James accepts that he can point to no prejudice from the delay between 13 February and

27 March.

[19]     We are not  saying that  “the interests of justice” on an application under s 345B are necessarily limited to the period of delay, but that will normally be the court’s focus.   We do not consider that s 345B, which is essentially a case management provision, should take on the work traditionally undertaken on a s 347 analysis or on a stay application analysis.   Indeed, even Mr James did not suggest that that was its role when arguing this matter in the District Court; this suggestion of a expanded role for s 345B arose only when Mr James found out he could appeal a s 345B order but  not the  other  decisions.    The  scope of s 345B should  not  be stretched beyond its proper limits just because it carries an appeal right while s 347 does not.

[20]     These are observations only, of course.  A definitive analysis of s 345B will have to await a case where this court does have jurisdiction and an appeal from an order under that section is properly before us.

Solicitors:

Palmer Macauley, Kerikeri, for Applicant

Crown Law Office, Wellington