R v Turner

[2016] NZHC 350

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-090-004160 [2016] NZHC 350

THE QUEEN

v

MITCHELL TURNER

Hearing:	24 February 2016
Appearances:	David Johnstone for the Crown No appearance for the Defendant
Judgment:	4 March 2016

JUDGMENT OF MOORE J

This judgment was delivered by me on 4 March 2016 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

R v TURNER [2016] NZHC 350 [4 March 2016]

[1]       On 14 December 2015 Lang J directed pursuant to s 68(1) of the Criminal Procedure Act 2011 (“the Act”) that Mr Turner and his two co-defendants, Messrs Reddy and Walker, be tried in this Court on a charge of arson.

[2]       On 17 February 2016 Mr Turner appeared before Woolford J and pleaded guilty and was convicted.  His co-defendants have maintained their pleas of not guilty and their trial is scheduled to commence on 12 September 2016.

[3]       At the time Mr Turner entered his plea his counsel, Mr Boylan, noted that there were outstanding matters in the Waitakere District Court and asked whether Mr Turner could be sentenced on those matters at the same time as the arson, whether in the Waitakere District Court or in this Court.  Given that the entry of the plea was rather unexpected, the Crown was not in a position to address the Court on the feasibility of either option and Mr Turner was remanded for a further week so that the position could be clarified.

[4]       The Crown has since filed a memorandum in which it submits that the proper course is for the sentencing on the arson charge to proceed in this Court.

[5]       I have not had the opportunity to hear from Mr Boylan.  Mr Boylan found himself unable to attend because, en route to the Court this morning, he was involved in a traffic accident.

[6]       However,  as  I  indicated  in  callover,  I  am  satisfied  that  the  correct  venue  for

Mr Turner’s sentencing on the arson charge is this Court.   His sentencing takes place at

9:00 am on Tuesday, 22 March 2016.  I also indicated I would give my reasons in writing.

[7]       Section 9 of the Act sets out the jurisdiction of the District Court.  It provides:

“9         Jurisdiction of District Courts to conduct criminal proceedings

(1)       Subject to subsections (2) and (3) and section 114(2), a District

Court has jurisdiction to deal with a proceeding for any offence.

(2)       If, in accordance with section 72 or 73, the level of trial court for a proceeding in respect of a category 2 or 3 offence is the High Court, a District Court has jurisdiction over the proceeding only until the time that it is transferred to the High Court under section 75.

(3)       In a proceeding in respect of a category 4 offence, a District Court has jurisdiction to deal with the proceeding only until it is transferred to the High Court under section 36.

(4)       Any reference in this Act or any other enactment to a District Court, or to a court where that reference includes a District Court, or to a Judge of a District Court, must be read subject to Part 7.

…”

[8]       It appears there is no statutory authority for the proposition that the High Court may direct that a sentencing take place in the District Court after proceedings have been transferred to the High Court.

[9]       Where the criminal proceedings may be transferred from the High Court to the

District Court was considered by Brewer J in R v Rudd.1

[10]     There the defendant was charged with attempting to procure murder.   This is a category 4 offence and as such may only be tried in the High Court.   Mr Rudd was also charged with threatening to kill and possession of methamphetamine and cannabis.

[11]     The proceeding was transferred to the High Court where the Crown withdrew the charge of attempting to procure murder.  The Crown and the defence were in agreement that the proper Court for determining the remaining charges was the District Court.

[12]     In assessing whether the High Court had jurisdiction to send a criminal proceeding back to the District Court following a protocol order having been made, Brewer J noted that s 139(1)(b) of the Act provides that if a prosecutor has notified the Court proposing that two or more charges be heard together, and one charge is to be tried in the High Court, all charges must be tried in the High Court.  His Honour stated:

“… There is no reason to read s 139 as having only a preliminary effect.  I read it as having continuing application.   So long as one charge is to be tried in the High Court, all charges must be tried in the High Court.  But if that is not the case, and it is not the case here, then the charges do not have to be tried in the High Court.

I am satisfied that the charges which Mr Rudd now faces would be better dealt with in the District Court.  The District Court has jurisdiction and, because none of the charges are protocol offences, it should exercise that jurisdiction.”

[13]     What faced Brewer J in Rudd is a little different to the present case.  In Rudd the Court was faced with a situation where the matter was sent to the District Court for trial rather than for sentencing.  Furthermore, in Rudd, the original justification for transferring the charges to the High Court had ceased to exist once the charge of attempting to procure

murder was withdrawn.   Brewer J relied on s 183(1) of the Act which applies where the

1       R v Rudd [2014] NZHC 2949.

Court to which a proceeding has been transferred is not the correct Court.  This provision allows the proceeding to be transferred to the correct Court.

[14]      That is not the case here.   The transfer to the High Court for trial  was not an incorrect transfer.  Lang J correctly determined that the arson charge should be heard in the High Court.   There is no challenge to the correctness of that decision.   Thus this Court remains the correct Court.

[15]      I am also satisfied that in the circumstances there is no power under the Act for this Court to send the matter back to the District Court at Waitakere for sentencing.  While that may be a convenient course in that Mr Turner has pleaded guilty and is awaiting sentence on those charges, I note they were never transferred to this Court with the arson charge and they are completely unrelated to the facts and circumstances of the arson.

[16]     Furthermore, this Court is in a position to sentence Mr Turner six to seven weeks earlier than the District Court.

[17]     In the circumstances I direct that Mr Turner is to be sentenced in this Court on the charge of arson.  The unrelated charges and the sentencing process related to them will no

doubt proceed in the District Court in the usual way.

Moore J

Solicitors:

Crown Solicitor, Auckland

Mr Boylan, Auckland