R v Police HC Wellington CRI-2009-485-17
[2009] NZHC 1698
•28 April 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2009-485-17
R
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 28 April 2009
Counsel: K S Grau for respondent
B Yeoman for Appellant
Judgment: 28 April 2009 at 3.50pm
I direct the Registrar to endorse this judgment with a delivery time of 3.50pm on the
28th day of April 2009.
RESERVED JUDGMENT OF MACKENZIE J
[1] The appellant faces fraud charges of burglary in the District Court. He has elected summary jurisdiction and pleaded not guilty. Defended hearings had been scheduled. Police applied for a ruling on the admissibility of certain propensity evidence. The application was heard by Judge Moss on 13 February 2009 and a judgment delivered on 25 February 2009. The present appeal is against that
judgment.
R V NZ POLICE HC WN CRI-2009-485-17 28 April 2009
[2] A preliminary question of jurisdiction arises. Counsel for the respondent submits that there is no jurisdiction to hear the appeal, because the ruling made was not an order in respect of which an appeal lies in terms of s 115(1) of the Summary Proceedings Act 1957, which provides:
(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.
[3] The ability to appeal against an interlocutory ruling was addressed by the Court of Appeal in Black v Fulcher [1988] 1 NZLR 417. Cooke P, delivering the judgment of the Court, in a passage which he described as strictly speaking obiter but on which full argument had been heard, held that a conviction or a dismissal of an information is essential to a defendant’s general right of appeal under s 115. He said:
In the summary criminal jurisdiction, interlocutory general appeals are not provided for. As to points of law, similarly s 107 of the Summary Proceedings Act requires the determination of an information or complaint before an appeal lies. The provisions of s 379A of the Crimes Act 1961 as to preliminary appeals in indictable proceedings thus have no counterpart. No doubt there are some arguments that there should be a counterpart in the summary jurisdiction. On the other hand the legislature may have attached more weight to the consideration that summary proceedings should not be delayed. Be that as it may, it is clear on the ordinary and natural reading of s
115(1) of the Summary Proceedings Act that no appeal lay at this stage of this case on the ruling that the information charged an offence that could still
be prosecuted. Any other reading of the subsection, including the one
suggested for the appellant in argument that the word "order" where it first appears should not be read with the later words "on the dismissal of the information", appears to us strained and unconvincing. It is accepted by the respondent that McGechan J's attention was not drawn to this point - the argument before him was focused mainly on Police v S and other cases in which there had been a conviction, thus overlooking the essential basis of
conviction or dismissal (except in estreat cases). We have little doubt that the Judge would have reached the same conclusion as we have, had the matter been explored before him.
[4] Black v Fulcher was applied by a full court of this Court in Nuplex Industries Ltd v Auckland Regional Council [1999] 1 NZLR 181, dealing with s 107 of the Summary Proceedings Act.
[5] Section 115(1) has been amended subsequent to Black v Fulcher. The difference in the way in which the subsection is expressed does not indicate any intention to alter the law as expressed (albeit obiter) in Black v Fulcher. The essential point, namely that either a conviction or a dismissal is essential to a defendant’s general right of appeal, remains, in that the right of appeal is expressed to arise “where a District Court determines any information or complaint”. The orders referred to in s 115(1)(b) must necessarily be orders made on the determination of the information or complaint, not interlocutory orders in the course of determining an information.
[6] For these reasons I am satisfied that no appeal lies at this stage. If the outcome of the trial is a conviction, the admissibility of the evidence will be capable of challenge on appeal at that stage.
[7] During the course of argument I raised with counsel the question of what jurisdiction the District Court may have to address the admissibility of evidence in an interlocutory way pre trial. There is no equivalent to s 344A of the Crimes Act
1961 in the summary jurisdiction. Questions of the admissibility of evidence in summary proceedings are essentially a matter for the trial Judge. In this case, there is no indication in Judge Moss’ judgment that she was seized of the question in the capacity of the intended trial Judge. I was informed from the bar that that was not the expectation when the application was heard. I consider that the issue of whether questions as to the admissibility of evidence in summary proceedings may appropriately be dealt with in advance of the hearing by a Judge other than the trial Judge may require further consideration. As the question is not directly before me, I think it preferable to express no view. As Mr Yeoman points out, there are
potentially significant case management implications for the District Court which would need to be taken into account in considering the issue.
[8] For the reasons I have given the appeal is dismissed for want of jurisdiction.
“A D MacKenzie J”
Solicitors: Luke Cunningham & Clere for respondent
B Yeoman, Petone for appellant
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