R v Police HC Rotorua Cri-2008-069-2002

[2009] NZHC 268

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2008-069-002002

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 March 2009

Appearances: Mr R   in person

Mr Wright for Respondent

Judgment:      5 March 2009

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 5 March 2009 at 1.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Crown Solicitor, Rotorua
Copy to:

Mr I R  , 46 Mere Road, Taupo

R V NEW ZEALAND POLICE HC ROT CRI-2008-069-002002  5 March 2009

[1]      Mr R   faced a charge in the District Court at Taupö of assaulting a female.    He was alleged to have assaulted one Elizabeth Hemara, also known as Elizabeth Hampton Hansen, on 27 April 2008.

[2]      Mr R   pleaded not guilty to the charge and on 6 October 2008 the charge was the subject of a defended hearing.   At the conclusion of the hearing His Honour Judge McGuire found that the charge had been proved but exercised his discretion under s 106 of the Sentencing Act 2002 to discharge Mr R   without conviction.

[3]      On 27 November 2008 Mr R   filed a notice of general appeal in this Court against the outcome of the proceeding in the District Court.    He then filed lengthy submissions in support of his appeal.

[4]      Counsel for the respondent prepared concise written submissions in reply and sent these both to the Court and to Mr R  .    These were to the effect that a defendant who is discharged under s 106 has no right of general appeal to this Court. In support of that proposition counsel provided the decision of John Hansen J in R v Police [1999] 2 NZLR 764. In that case the Judge held that an order for discharge simpliciter under s 19 of the Criminal Justice Act 1985 (the predecessor to s 106) was not an order that could give rise to an appeal under s 115(1) of the Summary Proceedings Act 1957.

[5]      The document that counsel for the respondent served upon Mr R   has clearly given rise to some confusion and concern on his part.    This is because the intituling to that document states that the proceeding is between “THE QUEEN” and Ian R  .

[6]      Counsel for the respondent responsibly accepted during the hearing before me that the intituling was incorrect and that the proper intituling should have shown Mr R   as the Appellant and the New Zealand Police as the Respondent.

[7]      Rights  of  general  appeal  remain  governed  by  s  106  of  the  Summary

Proceedings Act 1957.   Section 115(1) provides as follows:

115     Defendant's general right of appeal to High Court

(1)      Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint, and—

(a)      Convicts any defendant; or

(b)      Makes any order, including—

(i)       An order for the payment for costs; or

(ii)      An order declining an application for the payment for such costs; or

(iii)     An order for the estreat of a bond,—

the person convicted or against whom the order is made may appeal to the

High Court.

[8]      The discharge under s 106 means that Mr R   has not been convicted and no order at all has been made against him.   Rather, an order has been made in his favour.

[9]      For these reasons I am satisfied that the reasoning contained in R v Police remains valid, and that no general right of appeal lies in respect of an order for discharge under s 106.

[10]     The appeal must accordingly be dismissed.

Lang J