Siemer v Police

[2018] NZHC 1212

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE 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 AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-161

[2018] NZHC 1212

BETWEEN

VINCENT SIEMER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

On the papers

Appearances:

Appellant in person

B Finn for Respondent

Judgment:

28 May 2018

JUDGMENT OF LANG J

[on appeal against finding that appellant has a case to answer]

This judgment was delivered by me on 28 May 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

SIEMER v NEW ZEALAND POLICE [2018] NZHC 1212 [28 May 2018]

[1]                 Mr Siemer faces a charge of publishing the name of a person who had been granted name suppression.1 He is currently standing trial in the District Court before a Judge sitting without a jury.

[2]                 At the conclusion of the prosecution case Mr Siemer submitted he had no case to answer.2 In a reserved decision delivered on 26 April 2008 Judge Blackie rejected that submission.3 The current position is that the trial  has not  yet  concluded and  Mr Siemer will now need to elect whether to give or call evidence.

[3]  On 10 May 2018 Mr Seimer filed a Notice of Appeal against the Judge’s decision. He has asked that the appeal be determined on the papers “because it will turn on established legal principles and the Court’s own record”. The respondent has no objection to the appeal being determined on that basis.

[4]                 The Criminal Procedure Act 2011 (the Act) prescribes the circumstances in which an appeal can be filed against a determination made in a criminal proceeding. The Act provides a right of appeal against pre-trial rulings in Judge alone trials,4 as well as rights of appeal against conviction5 and sentence.6

[5]                 The Act does not, however, provide any right of appeal against a decision made once a trial has commenced and before it has resulted in either a conviction or discharge. Section 296 of the Act permits either party to a criminal proceeding to appeal on a question of law against a ruling by the trial court, but that question must arise in proceedings that relate to or follow determination of the charge.7 That point has not yet been reached in the present case because the charge has not yet been determined.

1 Lawyers and Conveyancers Act 2006, ss 240(1)(c), 263(1) and (2)

2      Criminal Procedure Act 2011, s 147.

3      New Zealand Police v Siemer [2018] NZDC 7829.

4      Criminal Procedure Act 2011, s 215.

5      Criminal Procedure Act 2011, s 229.

6      Criminal Procedure Act 2011, ss 244.

7      Criminal Procedure Act, s 296(3).

[6]                 It follows that there is currently no jurisdiction  for the  Court to  consider  Mr Siemer’s appeal.8

[7]                 It will therefore be necessary for the proceeding in the District Court to continue to a conclusion. If Mr Seimer is convicted, he has a right of appeal against conviction under s 229 of the Act. This will include the right to appeal against the Judge’s decision that he had no case to answer.

[8]                 The present appeal is struck out on the basis that there is no jurisdiction in this Court to consider it.

Lang J

Solicitors:

Crown Solicitor, Auckland Copy to Appellant

8      See D (CA716/2015) v R [2016] NZCA 190 at [20]-[23]; D (CA425/2016) v R [2016] NZCA 566

at [10]-[11].