Simon v The Queen - [2017] NZHC 1235

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000047 [2017] NZHC 1235

BETWEEN
MILES GRANT SIMON

Appellant

AND

THE QUEEN Respondent

Hearing: 6 June 2017

Appearances:

R J Laybourn for Appellant
D J McWilliam for Respondent

Judgment:

8 June 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 8 June 2017 at 11.30 am
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

SIMON v R [2017] NZHC 1235 [8 June 2017]

Introduction

[1] Following a judge alone trial before Judge Spear in the Hamilton District Court in May 2016, Miles Simon was convicted on one charge of burglary.1 He was subsequently sentenced to three years’ imprisonment on that charge (which reflected the totality of other offending to which he had pleaded guilty).2 Mr Simon wishes to appeal his conviction on the ground that a miscarriage of justice has occurred and his sentence on the ground that it is manifestly excessive.

[2] Mr Simon filed his notice of appeal outside the prescribed time3 and has applied for leave to bring his appeal out of time.4 Whether an extension of time should be granted turns on the reason the appeal is filed late and what merit, if any, the prospective points on appeal appear to have.5 As to the first, Mr Laybourn, for Mr Simon, has explained the lateness as being the result of the District Court’s failure to provide the necessary documents in sufficient time. I accept his
explanation.

[3] The real issue is whether there is any apparent merit in the proposed grounds. I consider this issue together with Mr Simon’s application for leave to adduce further evidence.

Proposed appeal

The case in the District Court

[4] The case concerned a burglary at a residential address in Massey Street, Hamilton, on 16 January 2016. The tenant of the property returned home to find the back door open, items from the house at the back door and other items missing. The safety catches on one of the kitchen windows were broken. Mr Simon’s fingerprints were found in two places on the inside of the window frame. There was no other
evidence linking him to the scene. The major issue at trial was whether, as

1      Police v Simon [2016] NZDC 26829.
2      Police v Simon [2016] NZDC 98893.
3      Criminal Procedure Act 2011, ss 231 and 248.
4      Criminal Procedure Act 2011, ss 231(3) and 248(4).
5      R v Slavich [2008] NZCA 116 at [14].

Mr Simon asserted, there was an innocent explanation for his fingerprints being on the inside of the window through which access had, apparently, been gained.

[5] It was common ground that Mr Simon had been to the house on previous occasions at the invitation of his former partner, who had flatted at the property. He said that this provided an innocent explanation for his fingerprints. But the police case was that the position of the finger prints was inconsistent with ordinary touching and consistent with…

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 Simon v The Queen

Details

AGLC: Simon v The Queen [2017] NZHC 1235
Case: [2017] NZHC 1235
Decision Date: 8 June 2017

CaseChat Overview and Summary

Miles Grant Simon appealed against his conviction and sentence for burglary. The conviction was based on his fingerprints found at the scene of a break-in. Simon argued that his fingerprints could have been left for innocent reasons, and that the sentence was excessive. The appeal was filed late, and Simon sought leave to proceed with it. The Court considered whether the reasons for the delay were sufficient and whether the proposed grounds for appeal had merit.

The Court found that the District Court's failure to provide necessary documents in a timely manner justified the late filing of the appeal. The Court then examined the merits of the proposed grounds for appeal. Simon sought to introduce new evidence from his former partner to support his claim that his fingerprints were left innocently. The Court held that the new evidence was not credible or cogent enough to warrant a new trial. Additionally, Simon's other proposed grounds for appeal, such as challenging the complainant's credibility and the adequacy of the police investigation, lacked merit.

Regarding the sentence, the Court found that the three-year sentence for burglary, which reflected the totality of Simon's offending, was within the appropriate range. The Court rejected Simon's claim that the sentence was excessive, and therefore, leave to appeal against the sentence was also refused.

In conclusion, the Court dismissed Simon's application for leave to appeal both his conviction and sentence. The Court held that there was no apparent merit in the proposed grounds for appeal, and the sentence was not excessive considering the totality of Simon's offending.

Orders