The Queen v Ross David Wells

[2000] NZCA 58

IN THE COURT OF APPEAL OF NEW ZEALAND CA77/00

THE QUEEN

V

ROSS DAVID WELLS

Hearing:	3 May 2000
Coram:	Elias CJ Thomas J Keith J
Appearances:	J H M Eaton and A  Shaw for the Appellant S P France and T J Warburton for the Crown
Judgment:	22 May 2000

JUDGMENT OF THE COURT DELIVERED BY KEITH J

1. Mr Wells has been charged with escaping from lawful custody under s120(1)(c) of the Crimes Act 1961.  He challenges the validity of the arrest warrant under which the prosecution claims he was taken into lawful custody and from which he is said to have escaped.  The challenge was raised by means of a Crown application under s344A as involving a dispute about the admissibility of evidence to be given by a police officer of what happened following the claimed arrest. That application, which was considered along with applications made under s345(5) (about the quashing of a count on the ground it was not founded on the depositions) and s347, failed.  Mr Wells applied for leave to appeal to this Court, under s379A(1)(aa), against the Judge’s refusal to make the order under s344A.

2. The short answer is that the sole, core issue raised by the initial application and the proposed appeal is the validity of the warrant.  If it was a nullity, as Mr Wells contends, he could not have been in lawful custody (no other basis for arresting him being available) and he would have a complete defence to the charge.  If that were established, any evidence of what happened afterwards, as he evaded the police officer, would be completely irrelevant.  It follows that the Court does not have jurisdiction to hear the appeal.

3. In the normal course the issue would have been better pursued under s347 by an application brought by Mr Wells – with, of course, no right of appeal.  The ruling would simply have stood, subject to the possibility of the ruling in effect being challenged by way of an appeal following the trial.  In the present case there is force in the proposition that because the initial application was made and the ruling was given without jurisdiction, the ruling should not remain to prejudice the trial.  We agree that the matter should be looked at afresh at or before trial.  Our impression is that new arguments about the scope of relevant evidence and the law may well be made at any such stage.  Some of the evidence might for instance be relevant to any contention about abuse of process or about the application of s204 of the Summary Proceedings Act 1957, but we do not of course indicate any view on such matters. 

4. It follows from the lack of jurisdiction that we must dismiss the application for leave to appeal.

Solicitors
Crown Law Office, Wellington