Thaivichit v The King

[2024] NZCA 78

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA383/2023
 [2024] NZCA 78

BETWEEN	PHITSAMAY NING THAIVICHIT Appellant
AND	THE KING Respondent

Hearing:	11 March 2024
Court:	Gilbert, Dunningham and Churchman JJ
Counsel:	D B Stevens for Appellant H G Clark for Respondent
Judgment:	25 March 2024 at 2 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed for want of jurisdiction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

1. This appeal against sentence was heard on 11 March 2024.  In the course of finalising the judgment, a jurisdictional question arose as to whether the first appeal court is this Court or the High Court.  Ms Thaivichit did not herself elect a jury trial.  She was to be tried by jury only because her co-offenders elected a jury trial.[1]  However, Ms Thaivichit and her co-offenders pleaded guilty prior to trial.  In those circumstances, the High Court is the first appeal court because the appeal is against sentence for a category 3 offence and the convicted person did not elect a jury trial.[2]

   [1]Criminal Procedure Act 2011, s 139(2).

   [2]Section 247(1)(b)(ii).

2. A minute was sent to the parties on 18 March 2024 seeking submissions or a joint memorandum on the jurisdictional issue.  The parties have now filed a joint memorandum confirming that the High Court is the first appeal court.  It is proposed that one of the High Court Judges sitting on the panel (Churchman J) will issue a judgment of the High Court determining the appeal in accordance with the submissions and other materials filed with this Court.  An extension of time to appeal to that Court can be granted without opposition.  It will be necessary for a notice of appeal to be filed in the High Court to found that Court’s jurisdiction to deal with the appeal.  As soon as that is done, a High Court judgment determining the appeal can be issued.

Result

1. The appeal against sentence is dismissed for want of jurisdiction.

Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent