Weiss v Police
[2025] NZHC 761
•2 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-293
[2025] NZHC 761
BETWEEN EMILY WEISS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: On the papers Counsel:
J Reid for Appellant
K Grant for Respondent
Judgment:
2 April 2025
JUDGMENT OF BECROFT J
This judgment was delivered by me on 2 April 2025 at 2.30pm.
Registrar/Deputy Registrar
……………………………………
Solicitors/Counsel:
Meredith Connell, Auckland J Reid, Auckland
WEISS v NEW ZEALAND POLICE [2025] NZHC 761 [2 April 2025]
The issue
[1] The single issue in this judgement is whether there is a statutory right to appeal against a finding of guilt, which led to the imposition of a discharge without conviction.
How this issue arose
[2] Mx Weiss faced three counts of trespass arising from protest action during the construction of the Kennedy Point Marina on Waiheke Island.1
[3] After a Judge-alone trial in the Auckland District Court in May 2024, Judge Lummis delivered an oral judgment with “brief reasons” finding two of the three charges proved.2 Full written reasons were to follow.
[4] On 31 May 2024, the Judge discharged Mx Weiss without conviction on both charges.
[5] On 14 June 2024, Mx Weiss filed a notice of appeal challenging the Judge’s finding in respect of the substantive findings of guilt against them. If the appeal is successful, then the discharge without conviction will fall away. Mx Weiss wishes to raise two questions of law, as to the availability of two specific defences. I observe that it would seem to have been a little difficult to formulate a specific appeal without knowing the detail of why the Judge found Mx Weiss guilty.
[6]On 16 August 2024, Judge Lummis issued her full written decision.
[7] On 5 March 2025, in this court, Andrew J issued a minute noting that the issue of jurisdiction for Mx Weiss to appeal had been raised by the Crown. He noted, as a result of agreement between the parties, that the issue could be determined on the papers. Mx Weiss has filed submissions in support of jurisdiction. The Crown indicates it will abide the decision of the court. However, the Crown notes it has not
1 The trial Judge, Judge Lummis, noted that Mx Weiss’s pronouns are they/them. As Judge Lummis did, so too will I refer to them as Mx Weiss throughout.
2 Police v Weiss [2024] NZDC 16500.
identified any case where a defendant such as Mx Weiss, in receipt of a discharge without conviction, has appealed a trial finding of guilt — at least alleging the finding was a result of an error of law.
[8] The issue of jurisdiction is now before me. This decision deals only with that issue and not whether, for instance, the grounds advanced by Mx Weiss constitute, or could constitute, errors of law. If there is jurisdiction, it is agreed that issue and any others which may arise can be considered by the appeal Judge who will consider the question of leave to appeal concurrently with the substantive appeal.
The relevant provision
[9] Mx Weiss relies on s 296(3)(b) of the Criminal Procedure Act 2011 (the Act), and I set out the entire section:
296 Right of appeal
(1)This section applies if a person has been charged with an offence.
(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.
(3)The question of law in a first appeal under this subpart must arise—
(a)in proceedings that relate to or follow the determination of the charge; or
(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
(4)The question of law must not be one that—
(a)arises from a jury verdict; or
(b)arose before the trial and has already been decided under subpart 2.
[10] It is apparent from that section that leave for such an appeal is necessary. As observed, this court has already directed that leave be addressed at the substantive appeal, subsequent to the jurisdiction issue being determined.3
3 Weiss v Police HC Auckland CRI-2024-404-293, 13 December 2024 (Minute No 2) at [9].
Is there jurisdiction to appeal?
[11] The issue before me turns entirely on whether s 296 provides an avenue for this appeal. That is a question of statutory interpretation.
[12]As observed by Downs J in Cooney v Police:4
The Criminal Procedure Act contains “carefully crafted appeal rights”. Its scheme must be respected.
[13] In other words, whether the right to appeal is just or fair, is not the question. The Act effectively operates as a code; the enquiry must be on whether statutory appeal rights are available in this situation.
[14] Mx Weiss submits that the proposed appeal (on questions of law), is “against a ruling by the trial court” as provided by subs (2). It is said the question of law arises “in determination of the charge”, as subs (3)(b) requires.
[15] In my view, there is jurisdiction for this appeal. A finding of “charge proven”, in other words a finding of guilt, is very much a “ruling” in the “determination of the charge.” The words “ruling” (subs 2) and “determination of the charge”, (subs 3) are not statutorily defined. Therefore, they have their ordinary meaning, as I now discuss.
[16] A “ruling”, in this context, is an authoritative and binding judicial decision or pronouncement—such as a judicial finding of guilt. Subsection (2) is thus satisfied.
[17] The meaning of “determination of the charge”, takes its colour from the non- exhaustive list under subs (3)(b). The “ejusdem generis” rule, as it is known in the Latin legal language of old, is of assistance.5 Applying that rule, the question becomes whether a finding of guilt is a determination of the same kind or category as the other listed outcomes. That list includes a conviction, an acquittal, a stay of proceedings and a dismissal of a charge under s 147 of the Act. It is expressly without limitation. Applying the ejusdem generis rule, I see no reason why a determination could not, and should not, also include a finding of guilt. A finding of guilt is a vital part in the
4 Cooney v Police [2024] NZHC 2562 at [12] (footnote omitted).
5 Peter Spiller New Zealand Law Dictionary (10th ed, LexisNexis, Wellington, 2022) at 100.
determination of a charge – generally in the same way as the other listed outcomes. Put another way, such a finding is, in our criminal justice system, a procedural “stablemate” of an acquittal or a conviction or a s 147 dismissal. Self-evidently, a finding of guilt must arise in the determination of the charge. It is a necessary prerequisite for a conviction which is usually necessary for the imposition of a sentence — the final step in determination of a charge. The fact that in this case no conviction was entered does not matter. The part of the determination process that would lead to sentencing simply stopped at an earlier than usual stage – that is, before entry of a conviction. But the finding of guilt was still a crucial step in determining the charge.
[18] In short, Mx Weiss’s planned appeal is jurisdictionally within the scope of s 296.
[19] Counsel for Mx Weiss, Ms Reid, in her helpful submissions, further submits that allowing Mx Weiss an opportunity to appeal in this case is the most rights consistent interpretation under s 27 of the New Zealand Bill of Rights Act 1990. However, recourse to that provision is unnecessary. Section 296 speaks for itself and creates jurisdiction in its own terms.
[20] My conclusion is somewhat reinforced by the reasoning of Downs J in Cooney. There, after a finding of guilt, but before a conviction had been entered, Ms Cooney applied under a variety of statutory provisions to appeal the finding of guilt. The only realistic available provision (from a list of possible contenders) was, as here, s 296. Downs J held that no question of law arose as the foreshadowed appeal points were purely questions of fact. There was no argument on the question of whether s 296 prevented such an appeal, and its applicability seems to have been assumed. Downs J was simply able to resolve the s 296 issue by holding that in any case no question of law was raised.
Conclusion
[21]I conclude there is jurisdiction for this appeal.
[22] I add that appeals arising from a discharge without conviction, are, of course, very rare. That is because under s 106(2) of the Sentencing Act 2002 such a discharge is deemed to be an acquittal. Invariably, defendants are content with that result. They generally regard it as a “win”. However, such an outcome is predicated upon a finding of guilt. Such a finding carries with it a degree of stigma. Having been discharged without conviction on one set of offending may also weigh against an individual if they ever seek it a second time. A discharge without conviction becomes part of a defendant’s court appearance history. And, in some circumstances, a defendant may be asked if they have ever appeared in court before and what the outcome was.
[23] In general, I see no reason in principle and policy why a defendant should be prevented from mounting a challenge to such a finding of guilt. But that is not the point. The statutory scheme must provide for it. Happily, for Mx Weiss, I conclude that it does.
[24] This matter is now formally set down for hearing on 22 July 2025, as directed by Andrew J, to be heard together with a related appeal, with timetabling orders he has already made in his Minute of 5 March 2025.6
Becroft J
6 Weiss v Police HC Auckland CRI-2024-404-293, 5 March 2025 (Minute) at [4] and [5].
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