Ratahi v Police - [2012] NZHC 626

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS
11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-000001 [2012] NZHC 626

BETWEEN BRYAN NOEL RATAHI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 2 April 2012

Counsel: No appearance for Appellant
J M Marinovich for Respondent

Judgment: 2 April 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1] The appellant has filed a notice of appeal against his conviction and sentence

of five months’ imprisonment imposed in the New Plymouth District Court on

18 January 2012 for breaching a protection order contrary to ss 19(1)(d) and 49(1)(a) of the Domestic Violence Act 1995. When his appeal was called in the High Court his assigned counsel advised the Court:

(1) The appellant had served his sentence;

(2)The appellant could not now be located and could not provide instructions to his assigned counsel.

RATAHI V NEW ZEALAND POLICE HC NWP CRI-2012-443-000001 [2 April 2012]

Procedure

[2] Counsel for the Crown suggested that the appeal could be dismissed for want of prosecution pursuant to s 133 of the Summary Proceedings Act 1957. That section provides:

133 Dismissal of appeal for non-prosecution

(1) If an appellant does not appear at the hearing of the appeal and, if he is in custody, he has not presented any case or argument in writing as provided in section 130 of this Act, or if an appellant, having appeared at the hearing, does not prosecute his appeal, the High Court may, if it thinks fit, dismiss the appeal for non-prosecution.

(2) Where the High Court dismisses any appeal for non-prosecution, the Registrar of that Court shall transmit a certificate to that effect to the Registrar of the District Court whose determination was appealed against.

[3] This case does not fit all of the criteria required by s 133. The appellant has not appeared but he is also no longer in custody.

[4] Absent express statutory power to dismiss this appeal for want of prosecution

I consider it appropriate to review:

(1) the evidence heard by the District Court;

(2) the submissions made to the District Court Judge; and

(3) the judgment and sentencing notes of the District Court Judge

to determine the appeal in the absence of the appellant pursuant to the principles set out by the Supreme Court in Petryszick v R,[1] thereby giving effect to the appellant’s
right to appeal.[2]

[1] Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153.

[2] New Zealand Bill of Rights Act 1990, s 25(h).

[5] In 2006 the appellant formed a relationship with Ms X. They had a child. The relationship ended in 2009. On 22 September 2009 the New Plymouth Family Court issued a temporary protection order in favour of Ms X against the appellant. A final protection order was issued by the New Plymouth Family Court on 19 October
2009.

[6] On 27 December 2011 the appellant…

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.

Continue reading Ratahi v Police

Details

AGLC: Ratahi v Police [2012] NZHC 626
Case: [2012] NZHC 626
Decision Date: 2 April 2012

CaseChat Overview and Summary

The appellant, Bryan Noel Ratahi, has appealed against his conviction and sentence of five months' imprisonment for breaching a protection order, imposed by the New Plymouth District Court on January 18, 2012. The conviction and sentence were pursuant to sections 19(1)(d) and 49(1)(a) of the Domestic Violence Act 1995. The appeal was heard on April 2, 2012, with no appearance from the appellant and his counsel citing that the appellant had served his sentence and could not be located. The respondent, New Zealand Police, was represented by counsel, J M Marinovich. The appeal was dismissed by Collins J in an oral judgment delivered on the same day.

The legal issue before the court was whether the appeal could be dismissed for want of prosecution under section 133 of the Summary Proceedings Act 1957. This section allows the High Court to dismiss an appeal if the appellant does not appear at the hearing or has not prosecuted their appeal. However, the court found that the appeal did not fit the criteria for dismissal under section 133, as the appellant was not in custody and had served his sentence. Therefore, the court reviewed the evidence, submissions, and judgment of the District Court to determine the appeal in the absence of the appellant, following the principles set out in Petryszick v R and giving effect to the appellant's right to appeal under section 25(h) of the New Zealand Bill of Rights Act 1990.

The court found that the District Court Judge had carefully considered the evidence and provided adequate reasons for accepting Ms. X's account of events. The appellant had a history of breaching protection orders, with eight prior convictions, and had offended on this occasion on the date of his release from prison. The sentence imposed was within the range of sentences reasonably available in the circumstances presented to the District Court Judge. Therefore, the appeal against conviction and sentence was dismissed.

No further orders were made by the court.

Orders