Smith v The the King - [2022] NZCA 541

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA32/2022
[2022] NZCA 541

BETWEEN	DENNIS ARTHUR SMITH Appellant
AND	THE KING Respondent

Court:	Courtney, Venning and Mander JJ
Counsel:	Appellant in Person B J Thompson and H S Cunningham for Respondent
Judgment (On the papers):	14 November 2022 at 10 am

JUDGMENT OF THE COURT

The application for leave to appeal the dismissal of the charge is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Dennis Smith seeks to challenge his acquittal. Mr Smith faced a charge of obtaining by deception. When the charge was before the District Court at Hamilton on 9 December 2021, Judge Marshall dismissed the charge under s 147 of the Criminal Procedure Act 2011 (CPA).[1] Dismissal has the effect that Mr Smith is deemed to be acquitted on the charge.[2]
[1]R v Smith DC Hamilton CRI-2021-068-157, 9 December 2021.
[2]Criminal Procedure Act 2011, s 147(6).
Despite that, Mr Smith filed a document with this Court seeking leave to appeal. If granted leave, he seeks to have the s 147 dismissal reversed in order for him to assess his position after “full disclosure”. To that end he also seeks orders requiring various people and authorities to answer questions he has previously asked of them and orders that they cooperate with him to establish all the relevant facts and law. He then seeks an order directing a new conference in the District Court before a different judge.
While Mr Smith acknowledged that on the surface the ruling (being acquitted) appears beneficial to him, he argues that it being issued in the contentious circumstances that it was caused a fundamental breach of justice to occur.

Background

In the summary of facts, the Crown alleged that the complainant was contracted to remove and clear a commercial structure from a site in Taumarunui. Mr Smith lives at a neighbouring property. The complainant had, from time to time, given Mr Smith unwanted scrap timber and metal from the structure being dismantled. Mr Smith repeatedly asked the complainant if he could have the steel portal frames that were the main support frames of the structure being dismantled. The complainant declined Mr Smith’s request as he wanted to keep them. On several occasions over the next approximately 13 months Mr Smith rang the complainant asking for the steel beams. On every occasion the complainant denied Mr Smith’s request for the beams. He asked Mr Smith to stop ringing him and told him that if he no longer required the beams, he would let Mr Smith know. Around 1 March 2021, the property where the beams were stored was leased to a person operating a firewood business. Approximately two to three weeks later this person was approached by Mr Smith who asked him if he could have the steel beams. Not knowing the beams were owned and wanted by the complainant, the person allowed Mr Smith to take them. When the complainant discovered the beams were…

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 Smith v The the King

Details

AGLC: Smith v The the King [2022] NZCA 541
Case: [2022] NZCA 541
Decision Date: 14 November 2022 at 10 am

CaseChat Overview and Summary

Dennis Arthur Smith appealed against the dismissal of a charge of obtaining by deception, arguing that the dismissal caused a fundamental breach of justice. Smith was acquitted when the District Court dismissed the charge under section 147 of the Criminal Procedure Act 2011. Smith sought leave to appeal the dismissal and argued that the court had no jurisdiction to hear his case as he had never consented to be subject to any law issued by Parliament. Smith also argued that the Crown actively failed to address matters he had raised and that any decision made by those within the justice system to withdraw charges should be communicated to a charged person with reasonable urgency.

The Court of Appeal considered whether there was jurisdiction for an appeal from the decision to dismiss the charge and whether there was an arguable question of law arising in the dismissal. The Court found that Smith’s proposed appeal did not disclose any arguable question of law and that his application for leave to appeal the dismissal of the charge was plainly without merit. Smith's argument that the court had no jurisdiction to hear his case as he had not consented to be subject to any law issued by Parliament was rejected as unsound legally. The Court found that Smith was entitled to be informed promptly and in detail of the notice and cause of the charge and that his rights were observed. The Court found that the Judge's decision to dismiss the charge was an appropriate exercise of his discretion under section 147(2) of the CPA.

Smith's application for leave to appeal the dismissal of the charge against him was declined.

Orders