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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE APPEAL PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-470-000002 [2015] NZHC 1772
BETWEEN
NEIHANA RANGITONGA
Appellant
AND
SHANNON LAING PARKER
Respondent
Hearing:
1 July 2015
Counsel:
T Rickard-Simms for appellant P Davison QC and H Steele for respondent
Judgment:
30 July 2015
JUDGMENT OF KATZ J
This judgment was delivered by me on 30 July 2015 at 11:30 am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Pacific Coast Law, Papamoa
Cook Morris Quinn, Auckland
Counsel: P Davison QC, Barrister, Auckland
RANGITONGA v PARKER [2015] NZHC 1772 [30 July 2015]
Table of Contents Paragraph
Number
Introduction [1]
Background [7]
The events of 6 July 2010 [7]
The District Court rejects Mr Rangitonga’s plea of
previous acquittal
Does s 296 of the CPA allow a defendant to appeal against a decision not to dismiss a charge under s 147 of the CPA?
The rule against double jeopardy and the special pleas –
legislative and common law history
[13] [19]
[28]
History of the rule against double jeopardy [30] Rationale for the rule against double jeopardy [37] Double jeopardy and abuse of process [40] Predecessor provisions in the Crimes Act 1961 [43] Recent statutory inroads into the special pleas [45]
Legislative history of ss 46 and 47 of the CPA [51]
What does the term “arising from the same facts” in s 47
mean?
[62]
Are the relevant facts all of the facts adduced in evidence at the rape trial?
[63]
Are the relevant facts the elements of the charge? [71]
Does the injuring charge arise out of the same facts as the alleged rape?
Does the term “any other offence” in s 47 include only those offences which might be deemed an included charge of the original, or can it be extended to other offences?
[83] [91]
Summary and conclusion [94]
Result [98]
Introduction
[1] This appeal concerns the correct interpretation of the special plea of previous acquittal, which is now contained in s 47 of the Criminal Procedure Act 2011 (“CPA”). In particular, having been previously acquitted of rape, can Neihana Rangitonga now be charged with injuring the complainant with intent to injure her, arising out of events that occurred the same evening?
[2] In his seminal text on double jeopardy, Martin Friedland describes the history of the rule against double jeopardy as the history of criminal procedure. No other procedural doctrine, he says, is more fundamental or all-pervasive.1 The principle that a defendant should not be tried more than once for the same crime can be traced back as far as ancient Greek and Roman law. In 355 BC the Greek statesman and orator, Demosthenes, is reported as saying that “the laws forbid the…
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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AGLC
Rangitonga v Parker [2015] NZHC 1772
Case
[2015] NZHC 1772
Decision Date
CaseChat Overview and Summary
This appeal concerns the correct interpretation of the special plea of previous acquittal, which is now contained in s 47 of the Criminal Procedure Act 2011 (CPA). Neihana Rangitonga, having been acquitted of rape, seeks to argue that he cannot be charged with injuring the complainant with intent to injure her, arising out of events that occurred on the same evening. The appeal raises a number of issues. The first issue is a threshold procedural issue: does s 296 of the CPA permit a pre-trial appeal by a defendant from a decision not to dismiss a charge under s 147 of the CPA? The second and third issues are questions of law in respect of which Rangitonga seeks leave to appeal. The second issue is what the term "arising from the same facts" in s 47 means. The third issue is whether the term "any other offence" includes only those offences which might be deemed an included charge of the original, or can it be extended to other offences? Katz J found that the appeal was dismissed. The first issue was a threshold procedural issue. The second two issues were questions of law in respect of which Rangitonga sought leave to appeal. Katz J found that the correct interpretation of ss 46 and 47 lies somewhere on the spectrum between these two competing extremes, albeit towards the narrower rather than the broader end of the spectrum. Katz J was not persuaded that the injuring charge "arises out of the same facts" as the previous rape charge. Rather, the alleged rape and the alleged assault formed part of a "series of events." While those events are closely linked in time and place, they arose out of different incidents, involving different facts, which occurred sequentially. The injuring charge is not a collateral attack on any factual findings made by the jury at the rape trial. Judge Ingram was accordingly correct to conclude that the plea of previous acquittal was not available.