SIMON JOHN MINSON CHARTERIS AND THE KING - [2024] NZCA 556

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA112/2024
[2024] NZCA 556

BETWEEN	SIMON JOHN MINSON CHARTERIS Applicant
AND	THE KING Respondent

Court:	Palmer, Brewer and Downs JJ
Counsel:	E J Forster for Applicant M J R Blaschke for Respondent
Judgment: (On the papers)	31 October 2024 at 10 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against conviction is granted.

____________________________________________________________________

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…

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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Details

Case: [2024] NZCA 556
Decision Date: 31 October 2024 at 10 am

CaseChat Overview and Summary

Simon Charteris sought leave to bring a second appeal against his conviction for permitting animals to be transported in an unfit condition, a decision that was initially made in the District Court and upheld by the High Court. The primary issue before the Court of Appeal was whether the leave for a second appeal against conviction should be granted, considering that Charteris had already appealed his conviction and was now seeking to challenge the refusal to grant a discharge without conviction. The Court considered the arguments regarding the fairness of a legal technicality potentially depriving Charteris of his right to appeal and the potential consequences of the conviction on his employment. The Court of Appeal examined the statutory framework and the precedent set in Jackson v R, which held that an appeal against a refusal to discharge without conviction must be considered an appeal against both conviction and sentence. The Court noted that while the application did not involve a matter of general or public importance, there were arguable errors in the District Court's judgment which might have led to a miscarriage of justice. Specifically, the Court found that the District Court did not adequately address Charteris's personal circumstances, which could have potentially resulted in a different sentencing outcome. Consequently, the Court of Appeal granted the application for leave to bring a second appeal against conviction.

The Court of Appeal's decision hinged on the potential for a miscarriage of justice due to the arguable errors in the District Court's judgment. The Court identified two key issues: first, the potential disconnect between the low gravity of the offending and the real and appreciable risk of an impact on employment, and second, the failure of the District Court to directly address Charteris's personal circumstances in the sentencing process. These factors led the Court to conclude that a miscarriage of justice may have occurred, thereby satisfying the criteria for granting leave under s 237 of the Criminal Procedure Act 2011. The Court emphasised that its observations should not be taken as a prediction of the outcome of the second appeal, but merely as a determination that the appeal should proceed to address the identified issues.

Orders