Warren v The the Queen - [2022] NZCA 179

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA510/2017
[2022] NZCA 179

BETWEEN	RHYS RICHARD NGAHIWI WARREN Appellant
AND	THE QUEEN Respondent

Hearing:	28 March 2022
Court:	Dobson, Woolford and Hinton JJ
Counsel:	Applicant in person by AVL J-A Kincade QC as Counsel Assisting J E Mildenhall for Respondent
Judgment:	11 May 2022 at 3 pm

JUDGMENT OF THE COURT

The application for leave to withdraw the notice of abandonment of an appeal against conviction and sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

Introduction

In 2017, the applicant, Mr Warren, was convicted of attempted murder of two police officers, using a firearm against a third and wounding a fourth officer with intent to cause him grievous bodily harm. He was sentenced by Brewer J who concluded that in terms of a finite sentence, a term of 19 years’ imprisonment with a minimum period of imprisonment (MPI) of 10 years would be appropriate.[1] However, the Judge went on to find that the length of finite sentence was insufficient to address the risk of serious reoffending. Accordingly, Mr Warren was sentenced to preventive detention with a minimum period of 10 years’ imprisonment.[2]
[1]R v Warren [2017] NZHC 1913 [Sentencing notes] at [50] and [55].
[2]At [86].
Mr Warren had represented himself at trial. The High Court appointed Mr Mansfield as counsel assisting. After sentencing, Mr Warren lodged an appeal against conviction and sentence in September 2017. In late-2017 this Court appointed Mr Ewen as standby counsel to assist Mr Warren in pursuit of his appeal.
However, in early-2018 Mr Ewen filed a memorandum indicating that Mr Warren rejected the prospect of any assistance from him. Mr Ewen conveyed to the Court Mr Warren’s attitude that he was not subject to the Court’s jurisdiction.
In August 2018 Mr Warren wrote to the Court stating that he did not accept the Court’s jurisdiction and that he was disengaging from the court proceedings and the criminal justice system. That step was followed in December 2018 by Mr Warren filing a signed and witnessed notice of abandonment of his appeal.
On 2 March 2021 the Court received a notice of appeal on the form for a standard appeal against conviction, completed by Mr Warren, purporting to initiate a fresh appeal against conviction and sentence. Since its receipt it has been treated as an application to withdraw his notice of abandonment of the appeal filed in 2017.[3]
[3]Court of Appeal (Criminal) Rules 2001, r 35.
Given Mr Warren’s indication that he intended to represent himself, Ms Kincade QC was appointed as counsel to assist the Court. Ms Kincade filed thorough submissions addressing arguments in support of Mr Warren being allowed to withdraw his notice of abandonment of the original appeal, and advancing arguments on the merits of his appeals against conviction and sentence.
Throughout all stages of the proceedings, Mr Warren has asserted that the laws of New Zealand do not apply to him on…

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 The the Queen

Details

AGLC: Warren v The the Queen [2022] NZCA 179
Case: [2022] NZCA 179
Decision Date: 11 May 2022 at 3 pm

CaseChat Overview and Summary

Rhys Richard Ngahiwhi Warren appeals against the decision of the High Court to reject his application to withdraw a notice of abandonment of his appeal against conviction and sentence. He argues that he has discovered new evidence and has a change of heart. The Court of Appeal declines the application for leave to withdraw the notice of abandonment. Mr Warren was convicted of attempted murder of two police officers, using a firearm against a third and wounding a fourth officer with intent to cause him grievous bodily harm. He was sentenced by Brewer J to preventive detention with a minimum period of 10 years’ imprisonment. Mr Warren had represented himself at trial. He lodged an appeal against conviction and sentence in September 2017. In December 2018, Mr Warren filed a signed and witnessed notice of abandonment of his appeal. In March 2021 he filed a notice of appeal on the form for a standard appeal against conviction, completed by Mr Warren, purporting to initiate a fresh appeal against conviction and sentence. The Court of Appeal issued a minute recording that it would not comply with Mr Warren’s demand to immediately order his release and that it would proceed to hear argument on the application in his absence should he maintain his stance that he would not appear. The Court of Appeal accepts that the law of New Zealand applies to Mr Warren. The Court of Appeal rejects the argument that the notice of abandonment should be treated as null and void. The Court of Appeal rejects the argument that there are exceptional circumstances that require the notice of abandonment to be withdrawn in the interests of justice. The Court of Appeal concludes that the threshold for granting leave to withdraw the notice of abandonment is not reached and declines the application.

Orders