Jones v Police

[2017] NZHC 2133

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-290 [2017] NZHC 2133

BETWEEN

PETER JONES

Appelllant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 September 2017
Appearances:	A Wilburn for Appellant B Finn for Respondent
Judgment:	1 September 2017
Reasons:	4 September 2017

REASONS FOR JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 4 September 2017 at 2.30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Jones v NZ Police [2017] NZHC 2133 [1 September 2017]

[1]      On 21 July 2017, Peter Huw Jones appeared in the District Court at Auckland before Judge J Bouchier on a charge of breach of a community work order.   He appeared also on various applications to cancel and substitute sentences previously imposed by the Court.  At the hearing, the prosecution sought and was granted leave to withdraw the charge of breach of a community work order.

[2]      Mr Jones  filed  a  notice  of  general  appeal  seeking  to  appeal  against  the withdrawal of the charge, and the matter came before me at a criminal appeals callover.  Being satisfied that there was no jurisdiction for the hearing of the appeal, I dismissed it, saying that I would give my reasons in writing in due course.  These are the reasons.

[3]      Counsel for the respondent submitted, in a memorandum filed prior to the callover, that there was no jurisdiction for the Court to hear the appeal.  He argued that the grant of leave to withdraw the charge was a pre-trial decision not included in the list of pre-trial evidential decisions in Judge alone cases that may be appealed to this Court.1

[4]      In support of her argument that the Court should set the appeal down for hearing,  Ms Wilburn  explained  that  procedures  under  the  Criminal  Procedure (Mentally Impaired Persons) Act 2003 were well advanced at the time the charge was withdrawn.  She argued that Mr Jones’s fair trial rights were breached as a result of the charge being withdrawn before the court had determined his fitness to stand trial.2    I can only assume, although even after hearing from Ms Wilburn it has not been satisfactorily explained to me, that counsel considered Mr Jones would benefit from a finding that he was unfit to stand trial as a mitigating factor in the Court’s decision whether or not to cancel and substitute the other sentences.

[5]      Although Ms Wilburn acknowledged that the decision sought to be appealed was  not  an  evidential  decision  and  not  one  listed  in  s 215(2)  of  the  Criminal

Procedure Act, she sought to argue that the Court retained a residual discretion,

1      Criminal Procedure Act 2011, s 215.

2      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 14.

basing her submissions on observations of the Court of Appeal in R v Hohipa.3   The cited passages, however, deal with the approach the Court should take in deciding whether  leave  should  be  granted  in  a  case  which  comes  within  subsection  (2). Nothing said in that case created jurisdiction, not authorised by Parliament, to hear an appeal from a court’s pre-trial decision to permit a prosecutor to withdraw a charge.

..........................................

Toogood J

3      R v Hohipa [2015] NZCA 73 at [24]-[31].