Vohra v The Queen - [2018] NZCA 128

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA540/2017
[2018] NZCA 128

BETWEEN	MANOJ VOHRA Appellant
AND	THE QUEEN Respondent

CA706/2017
BETWEEN	MILES JOHN MCKELVY Appellant
AND	THE QUEEN Respondent

Hearing:	22 March 2018
Court:	Kós P, Miller, Asher, Brown and Gilbert JJ
Counsel:	S G Vidal for Appellant Vohra M S Gibson for Appellant McKelvy C A Brook and K L Kensington for Respondent D A Ewen and J A E Tausi as counsel assisting
Judgment:	1 May 2018 at 2.30 pm

JUDGMENT OF THE COURT

AMr Vohra’s appeal is dismissed for want of jurisdiction. The High Court is the correct first appeal court.
BThis Court is the correct first appeal court for Mr McKelvy’s appeal which should now be set down for hearing.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

These two appeals were set down to determine as a preliminary question the identity of the applicable first appeal court. A Full Court was convened because it was anticipated that the correctness of this Court’s recent decision in Jackson v R might be called into question.[1] However it transpired ultimately that Jackson was not directly engaged by either appeal. In any event for reasons of comity it may not have been appropriate to revisit Jackson in circumstances where a more comprehensive legislative change was in prospect.[2]

First appeal courts

[1]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.

[2]Discussed at [21]–[25] below.

A key principle underlying the approach to appeal pathways in the Criminal Procedure Act 2011 (the Act) was that the Court of Appeal should continue to have a supervisory jurisdiction in jury trial cases. The High Court would have first instance jurisdiction over category 3 offences when jury trial was not elected in the District Court.[3]
[3]Ministry of Justice Criminal Procedure (Reform and Modernisation) Bill: Departmental Report for the Justice and Electoral Committee (16 May 2011) at 187.
The Act gave effect to that policy in a sequence of sections defining first appeal courts. With reference to first appeals against conviction s 230 provided:
230 First appeal courts
The first appeal court for an appeal under this subpart is —
(a)the District Court presided over by a District Court Judge, if the appeal is against a conviction entered by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or
(b)the High Court, if the appeal is against a conviction entered by a District Court presided over by a District Court Judge, other than a conviction for —
(i)a category 3 offence after the convicted person elected a jury trial; or
(ii)a category 4 offence; or
(c)either the Court of Appeal or the Supreme Court, in any other case.
The first appeal court in appeals against sentence was specified in s 247:[4]
[4]Other provisions specifying first appeal courts are ss 219 (appeals against pre-trial decisions), 297 (appeals on questions of law) and 272 (appeals against…

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 Vohra v The Queen

Details

AGLC: Vohra v The Queen [2018] NZCA 128
Case: [2018] NZCA 128
Decision Date: 1 May 2018

CaseChat Overview and Summary

The Court of Appeal of New Zealand was tasked with determining the identity of the applicable first appeal court in two appeals, one brought by Manoj Vohra and the other by Miles John McKelvy. Both appellants contested the correctness of the Court of Appeal's decision in Jackson v R. Vohra sought to appeal his conviction and sentence for male assaults female, arguing that he should have been discharged without conviction. McKelvy sought to appeal against his sentence, which was five years and two months' imprisonment for drug-related charges. The legal issues revolved around the interpretation of sections 230 and 247 of the Criminal Procedure Act 2011, which define the first appeal courts for appeals against conviction and sentence, respectively.

The court examined whether an election on other charges in the same proceeding, which are not the subject of the appeal, dictates appeal pathways for a charge on which no election was entered. In Vohra's case, the court found that the High Court is the correct first appeal court for the appeal against conviction and sentence in respect of Charge 1. For McKelvy, the court held that the Court of Appeal is the correct first appeal court because McKelvy elected jury trial, pleaded guilty prior to trial, and the sentence appealed against is a sentence of imprisonment exceeding five years. The court noted that the proposed amendments to the Criminal Procedure Act through the Courts Matters Bill would reverse the effect of Jackson v R, but the current appeals did not require a re-evaluation of Jackson.

In conclusion, the court dismissed Vohra's appeal for want of jurisdiction, affirming that the High Court is the correct first appeal court. For McKelvy, the court found that the Court of Appeal is the correct first appeal court, and his appeal should be set down for hearing.

Orders