SIMON JOHN MINSON CHARTERIS AND THE KING
[2024] NZCA 556
•31 October 2024 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA112/2024 [2024] NZCA 556 |
| BETWEEN | SIMON JOHN MINSON CHARTERIS |
| AND | THE KING |
| Court: | Palmer, Brewer and Downs JJ |
Counsel: | E J Forster for Applicant |
Judgment: | 31 October 2024 at 10 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal against conviction is granted.
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REASONS OF THE COURT
(Given by Palmer J)
What happened?
Mr Simon Charteris was charged with three offences of permitting an animal — being rams — without reasonable excuse, to be transported when the animal was unfit to be transported in 2020, under s 23(2)(c) of the Animal Welfare Act 1999. On 10 March 2023, after a trial before Judge G Matenga in the District Court at Hastings, he was found guilty.[1]
[1]Ministry for Primary Industries v Charteris [2023] NZDC 3883 at [86].
On sentencing Mr Charteris on 18 August 2023, the Judge accepted the gravity of the offending was low; the inadvertent result of a slip or a simple error.[2] In two instances, the rams were lame and in one the ram had an ingrown and cracked horn.[3] He also accepted that there was a real and appreciable risk of a consequential impact of a conviction on Mr Charteris’ employment.[4] But he was not persuaded the consequences of conviction would be out of all proportion to the gravity of the offending.[5] He declined Mr Charteris’ application for a discharge without conviction and fined him $3,800.[6]
[2]Ministry of Primary Industries v Charteris [2023] NZDC 12477 [discharge judgment] at [21] and [35].
[3]At [3].
[4]At [33].
[5]At [37].
[6]At [55].
Mr Charteris appealed his conviction to the High Court on the grounds the Judge erred in misapplying the onus and standard of proof, failing to identify the critical issue on the charges, and in making a broad credibility preference as to the expert evidence.[7] He did not appeal his fine or the refusal to discharge him without conviction. On 22 November 2023, in the High Court, Grice J dismissed Mr Charteris’ appeal of the conviction.[8]
[7]Charteris v Ministry for Primary Industries [2023] NZHC 3321 at [22].
[8]At [54].
Mr Charteris then sought to appeal the decision not to discharge him without conviction, by way of a sentence appeal.[9] On 28 February 2024, on the basis of this Court’s decision in Jackson v R, Grau J observed that an appeal of a decision regarding a discharge without conviction is a composite appeal against conviction and sentence.[10] The essence of the challenge is to the entry of a conviction, “with the setting aside of the conviction being the necessary prerequisite to, and objective of, the appeal”.[11] Only if this appeal is unsuccessful would a secondary appeal against sentence be pursued.[12] Because he had already had a conviction appeal, and despite having sympathy for his position, the Judge concluded that the High Court lacked jurisdiction to hear the appeal and that a second appeal against conviction required the leave of the Court of Appeal for a second appeal.[13]
[9]Charteris v Ministry for Primary Industries [2024] NZHC 353 [jurisdiction judgment] at [4].
[10]At [9], citing Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [16].
[11]Jurisdiction judgment, above n 9, at [9].
[12]At [9].
[13]At [14]–[15].
Mr Charteris applies under s 237 of the Criminal Procedure Act 2011 (the Act) for leave to bring a second appeal against conviction as it relates to the refusal to grant a discharge without conviction.[14]
Submissions
[14]Collins J granted Mr Charteris an extension of time to apply for leave to appeal in a minute dated 22 April 2024.
Mr Forster, for Mr Charteris, submits that it would be unfair for a legal technicality to deprive him of the opportunity to appeal the decision declining him a discharge without conviction. He has provided evidence that he lost his job as a result of the conviction. Mr Charteris proactively pursued his appeals, dealing with the substantive appeal first. Section 25(h) of the New Zealand Bill of Rights Act 1990 recognises his right to appeal the conviction or sentence or both. The District Court did not consider his personal circumstances in declining his application for a discharge without conviction, took untested adverse comments into account without acknowledging their nature, made inconsistent findings about the consequences of conviction, and did not balance those consequences against the seriousness of the offending.
Mr Blaschke, for the Crown, opposes leave being granted. He submits the appeal against the discharge without conviction should have been argued when the conviction was appealed and there is no risk of a miscarriage of justice.
Should leave be granted?
In Jackson v R, under the Act, this Court stated:[15]
[7] … Before the enactment of the Criminal Procedure Act 2011 (the CPA) rights of appeal against conviction or sentence imposed in the District Court were governed by pt 4 of the Summary Proceedings Act 1957 (the SPA). The consensus of authority in the High Court was that an appeal under the SPA against a refusal to discharge without conviction was properly characterised as an appeal against both conviction and sentence, even where it was filed technically against sentence alone.
[8] We agree with that line of authority and its rationale, which applies equally to the CPA. If it is considered in conceptual terms, without examining the relevant statutory provisions, an appeal against the refusal to discharge without conviction must, at the very least, be characterised as an appeal against conviction. The essence of the challenge is to the entry of a conviction; that is the nature of the decision against which the appeal is brought. The setting aside of the conviction is both the necessary prerequisite to and objective of the appeal.
[9] In the event an appeal against a refusal to discharge without conviction is unsuccessful, an appellant like Ms Syme would pursue her secondary or contingent appeal against sentence alone. Thus her appeal is properly characterised as being against conviction and sentence.
[15]Footnotes omitted.
Here, the High Court had already dismissed Mr Charteris’ appeal against conviction. It could not consider an appeal of the decision to refuse the discharge without conviction through the sentence appeal. Mr Charteris should have appealed the refusal to discharge without conviction in the course of appealing his conviction; though perhaps his lawyers were responsible for the procedural choices made.
In any event, we consider Grau J was correct that any second appeal against conviction requires the leave of this Court under s 237 of the Act. Under s 237 of the Act, we must not give leave for a second appeal unless we are satisfied that the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.
We do not consider the application involves a matter of general or public importance. But there are arguable errors in the District Court judgment refusing the application for a discharge without conviction. First, there is a potential disconnect between the Court accepting that the gravity of the offending, characterised as “inadvertent, a slip or a simple error”, was low and being satisfied there was a real and appreciable risk of an impact on employment, while not being persuaded those consequences would be out of all proportion to the gravity of the offending.[16]
[16]Discharge judgment, above n 2, at [21], [33], [35], and [37].
Second, the Court does not appear to have directly addressed Mr Charteris’ personal circumstances in his sentencing. If that had been done, and without knowing all those circumstances, it is conceivable that the penalty might have been reduced to such a low level that the real and appreciable consequences of conviction on Mr Charteris’ employment, which the Judge accepted existed and which have subsequently been borne out, would have been out of all proportion to the gravity of the offending.
We are also conscious that the way the court procedures have played out here means that Mr Charteris is unable to appeal the refusal of his application for a discharge without conviction without leave to appeal.
Accordingly, we are satisfied that a miscarriage of justice may have occurred and the application for leave to bring a second appeal should be granted. Our observations should not be taken to predict the outcome of that appeal.
Result
The application for leave to bring a second appeal against conviction is granted.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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