Wirihana v The Queen - [2019] NZCA 368

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA737/2018
[2019] NZCA 368

BETWEEN	URIAH WHETU MONTY WIRIHANA Appellant
AND	THE QUEEN Respondent

CA752/2018
BETWEEN	ANNIKE RENEE PIENEMAN Appellant
AND	THE QUEEN Respondent

CA787/2018
BETWEEN	JORDAN STRATTON-PINEAHA Appellant
AND	THE QUEEN Respondent

Hearing:	24 July 2019
Court:	Gilbert, Courtney and Wild JJ
Counsel:	E R Fairbrother QC for UWM Wirihana S Brickell for A R Pieneman J G Krebs for J Stratton-Pineaha C A Brook for Respondent
Judgment:	16 August 2019 at 2.30 pm

JUDGMENT OF THE COURT

This Court is the first appeal court for the purposes of these three appeals. The appeals are to be set down for hearing.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

The appellants in each of these appeals elected trial by jury in the District Court but subsequently entered guilty pleas and were sentenced in that Court. They have filed appeals against conviction or sentence or both in this Court.
A preliminary hearing was set down to determine the following questions about the correct jurisdictional pathways for appeals in light of amendments to the Criminal Procedure Act 2011 (CPA) made by the Courts Matters Act 2018 (CMA):[1]
(a)Is the High Court or this Court the first appeal court for conviction and sentence appeals where an appellant has been convicted in the District Court following a jury trial election being overtaken by a guilty plea? This question turns on whether the entry of a guilty plea can or should be treated as a withdrawal of the jury trial election for the purposes of ss 230(2) and 247(2) of the CPA.
(b)How does the CMA apply to appeals that come before this Court including, for example, to appeals where: the charging documents were filed after 14 November 2018;[2] the jury trial election was made after that date; determinations appealed from were made after that date; or the appeals were filed in this Court after that date.
[1]Pieneman v R CA752/2018, 20 June 2019 (Minute of Gilbert J).
[2]Being the date the relevant provisions of the Courts Matters Act 2018 came into force.
The relevant circumstances of each appellant are:
(a)Mr Wirihana elected a jury trial on 9 October 2017 but subsequently pleaded guilty on 9 October 2018 to two charges of possessing methamphetamine for supply. He was sentenced in the District Court at Napier to three years and seven months’ imprisonment.[3] He appeals one of those convictions on the ground that his offending did not constitute the offence of possession for supply in law. He also appeals his sentence.
(b)Ms Pieneman elected a jury trial on 29 December 2017 but subsequently pleaded guilty on 26 April 2018 to theft by a person in a special relationship. She was sentenced in the District Court at Auckland to six months’ supervision, 80 hours’ community work and ordered to pay reparations of $1,360.[4] She appeals her conviction and…

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.

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Details

Case: [2019] NZCA 368
Decision Date: 16 August 2019 at 2.30 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, three appellants, Wirihana, Pieneman, and Stratton-Pineaha, challenged their convictions or sentences, or both, following their guilty pleas after electing jury trials in the District Court. The appellants argued that the Court of Appeal should be the first appeal court for conviction and sentence appeals when a jury trial election was overtaken by a guilty plea. The Crown contended that the High Court should be the first appeal court in such circumstances. The Court of Appeal held that the entry of a guilty plea does not amount to the withdrawal of a jury trial election for the purposes of sections 230(2) and 247(2) of the Criminal Procedure Act 2011 (CPA). Instead, the appeal pathway is as set out in sections 230(1) and 247(1), which results in all three appeals being heard in the Court of Appeal. Consequently, the Court of Appeal is the first appeal court for the purposes of these three appeals, and the appeals are to be set down for hearing.

Orders