Warren v R - [2016] NZCA 108

IN THE COURT OF APPEAL OF NEW ZEALAND

CA125/2015
CA312/2015
[2016] NZCA 108

BETWEEN	VINCENT KERRY WARREN Applicant
AND	THE QUEEN Respondent

Hearing:	16 February 2016
Court:	Stevens, Ellis and Simon France JJ
Counsel:	Applicant in Person K A Courteney for Respondent
Judgment:	11 April 2016 at 3.00 pm

JUDGMENT OF THE COURT

AThe application in CA312/2015 to appeal a decision of the High Court confirming the abandonment by Mr Warren of his High Court appeal is dismissed for lack of jurisdiction.
BThe application in CA125/2015 for leave to bring a second appeal is dismissed.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

This judgment addresses two separate applications by Mr Warren for leave to further appeal convictions. Both sets of convictions involve the same complainant with the core allegation that Mr Warren had been harassing her, and more latterly, making threats against her.
In 2010 Mr Warren was charged with harassment and misuse of a telephone. He pleaded guilty and was sentenced but since then has been seeking to re-litigate the matter. He initially appealed both conviction and sentence, but then abandoned the conviction appeal. That was in 2012. In 2015 he unsuccessfully sought to have the abandoned appeal reinstated. The first application relates to that refusal.
In 2014 Mr Warren defended two new charges of harassment, and one of threatening to kill. He was convicted after a Judge‑alone trial and appealed in the normal way to the High Court. Although successful in relation to a sentence appeal, Mr Warren was unsuccessful on his conviction appeal. He now seeks leave under s 237 of the Criminal Procedure Act 2011 to bring a second appeal.
We address each application in turn.

Application arising from the 2010 convictions

Background

On 3 August 2010 Mr Warren pleaded guilty in the Christchurch District Court to two charges – one of harassment contrary to s 8(1)(b) of the Harassment Act 1997, and one of misusing a telephone contrary to s 112(1) of the Telecommunications Act 2001.
In late 2009 and the early part of 2010, Mr Warren attended a commercial driving course. He became infatuated with the female driving instructor and began contacting her via text message. He then moved on to intercepting the complainant outside her place of work, and following her to various locations around town. Mr Warren obtained her home telephone number and sought to contact her there and left messages. On one occasion eggs were thrown at her property.
Although he initially denied the charges, Mr Warren entered guilty pleas after taking legal advice. The following day he also agreed to the issuing of a restraining order. Mr Warren was represented by counsel at the District Court sentencing before Judge MacAskill. Although the Judge had some misgivings about the leniency of the sentence, he accepted counsel’s submissions and imposed a sentence of 250 hours’ community work.[1]
[1]New Zealand Police v Warren DC Christchurch CRI‑2010‑009‑10821, 20 October 2010.
The Judge was also concerned about protection of the…

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 R

Details

AGLC: Warren v R [2016] NZCA 108
Case: [2016] NZCA 108
Decision Date: 11 April 2016 at 3.00 pm

CaseChat Overview and Summary

Vincent Kerry Warren sought to appeal his convictions for harassment and misuse of a telephone, which he pleaded guilty to in 2010. The Court of Appeal had to decide whether Mr Warren's application to appeal the abandonment of his conviction appeal was valid and if he had grounds for a second appeal concerning his 2014 convictions. The court examined the merits of both applications and found that Mr Warren's claims did not meet the criteria for an appeal.

The Court of Appeal found that there was no jurisdiction to hear Mr Warren's application to appeal the abandonment of his conviction appeal. The abandonment was considered valid, and the court could not entertain an appeal against it. The court also concluded that there was no merit in Mr Warren's efforts to challenge the conviction based on his guilty plea. The other alleged instances of non-disclosure and errors in the victim impact statement could only go to sentence, and any such appeal would not succeed.

As for the application concerning the 2014 convictions, the court found that there was no question of general or public importance arising. The application invited the court to revisit concurrent findings of fact, and the advantages of the trial judge were manifest. Furthermore, there was no concern that a miscarriage of justice may have occurred. Mr Warren's concerns about the dates on which the exchanges between him and the inmate were said to have occurred, and the lack of disclosure he received about the cellmate witness prior to the witness testifying, did not merit further inquiry.

In conclusion, the Court of Appeal dismissed both of Mr Warren's applications for leave to appeal. The application in CA312/2015 to appeal a decision of the High Court confirming the abandonment by Mr Warren of his High Court appeal was dismissed for lack of jurisdiction. The application in CA125/2015 for leave to bring a second appeal was also dismissed.

Orders