Warren v Police - [2015] NZHC 251

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000060 [2015] NZHC 251

BETWEEN
VINCENT WARREN

Applicant

AND

NEW ZEALAND POLICE Respondent

Judgment: 23 February 2015

JUDGMENT OF GENDALL J (Dealt with on the papers)

[1] On 20 October 2010, having pleaded guilty to charges of harassment under the Harassment Act 1997 and using language with the intention of offending the recipient under the Telecommunications Act 2001, the applicant (Mr Warren) was sentenced in the District Court to 250 hours of community work. At the time, Mr Warren was represented by counsel.

[2] On 10 September 2012, Mr Warren gave notice that he wished to appeal his sentence. When queried as to why he wished to appeal a conviction to which he had pleaded guilty, he responded that “he had completed his community work sentence.”

[3] On 11 October 2012, Mr Warren’s appeal against conviction was heard by Chisholm J.1 Mr Warren at that point explained that while the appeal before the Court was an appeal against conviction, he actually wished to pursue an appeal against sentence. Chisholm J dismissed the appeal against sentence and the appeal against conviction was subsequently abandoned.

[4] On 18 August 2014, Mr Warren applied for the Royal Prerogative of Mercy in the belief that he had suffered a miscarriage of justice. However, it seems he was
informed by Mr Niels Holm, the Official Secretary to the Governor-General, that his

1 Warren v New Zealand Police [2012] NZHC 2656.

WARREN v NEW ZEALAND POLICE [2015] NZHC 251 [23 February 2015]

application did not meet the requirements for consideration by the Governor-General because he had not exhausted all of his appeal rights.

[5] Mr Holm informed Mr Warren that if he wanted to challenge his conviction that he should first consider his legal options in the courts. Mr Holm also informed Mr Warren that in some circumstances, where a person has abandoned an appeal to the High Court, the Court will consider reinstating the appeal.

Reinstatement of Abandoned Appeal

[6] Now it seems that Mr Warren wishes to reinstate his abandoned appeal against his earlier conviction. His letter to this Court dated 26 January 2015 and received on 30 January 2015 appears to say as much.

[7] An abandonment of appeal is usually the finally termination of an appeal. However, it has been held that jurisdiction to re-open does exist “provided that special reasons for the exercise of that jurisdiction can be identified.”2

[8] In Eschbank v Police,3 Tipping J adopted the test articulated by Lawson J in giving judgment of a five judge Court of Criminal Appeal:4

In our judgement the kernel of what has been described as the ‘nullity test’ is that the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment.

[9] Tipping J found however that the appellant failed to qualify on the basis that he made…

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 Warren v Police

Details

AGLC: Warren v Police [2015] NZHC 251
Case: [2015] NZHC 251
Decision Date: 23 February 2015

CaseChat Overview and Summary

In Warren v Police, the applicant, Vincent Warren, sought to appeal his conviction and sentence imposed by the District Court. Warren had pleaded guilty to charges of harassment and using offensive language and was sentenced to 250 hours of community work. He later sought to appeal his conviction, which was dismissed by Chisholm J. Warren then applied for the Royal Prerogative of Mercy, which was rejected as he had not exhausted his appeal rights. He subsequently sought to reinstate his abandoned appeal and appeal against his conviction, arguing that there had been a miscarriage of justice. The High Court was required to determine whether the abandoned appeal could be reinstated and whether there was a miscarriage of justice to warrant an appeal against conviction. The Court held that there were no special reasons to reinstate the abandoned appeal and that there was no evidence of a miscarriage of justice. The appeal was dismissed in its entirety, and the Court concluded that the matter had been finally determined.
The Court found that the abandonment of an appeal typically terminates the appeal process. However, the Court may reopen an abandoned appeal if special reasons exist. In this case, the Court found that Warren had not provided any special circumstances to warrant the reinstatement of his abandoned appeal. The Court also found that an appeal against conviction following a guilty plea is generally only entertained if there is evidence of a miscarriage of justice. Warren had provided no evidence to suggest that a miscarriage of justice had occurred. Accordingly, the Court dismissed Warren's application to reinstate his abandoned appeal and his appeal against conviction.

Orders