Note Fergusson v The Queen

For a Court ready (fee required) version please follow this link

NOTE 5

Fergusson v R

Supreme Court of New Zealand SC13/2012; [2013] NZSC 28 10

11 April 2013

McGrath, William Young and Glazebrook JJ

Criminal practice and procedure – Appeals to Supreme Court – Appeal from decision refusing to extend time for appeal to Court of Appeal – Appeal directly 15 from High Court subsequent to refusal to extend time for appeal to Court of Appeal – Crimes Act 1961, s 383A(1) – Supreme Court Act 2003, s 14.

...

The present application to this Court seeks leave, first, to appeal against

the Court of Appeal’s decision refusing to extend time for a sentence appeal. In 20 the alternative, the applicant applies to appeal direct to this Court against the

High Court’s 2003 sentencing decision.

There is no right to appeal to this Court against a decision refusing to extend time for appeal. Section 383A(1) only permits appeals with leave from

decisions of the Court of Appeal on appeal and an application for extension of 25 time is not of that character. Recognising the likelihood that this Court would

so hold, counsel for the applicant also seeks leave to bring a leapfrog appeal against the High Court’s sentencing decision. Although there is no statutory bar against such an appeal, unless there are compelling circumstances this Court

will not permit direct appeals where their effect would be to circumvent the 30 inability of an applicant to appeal against the refusal of the Court of Appeal to extend time for appeal. As well, the Court is required by s 14 of the Supreme Court Act only to permit a direct appeal in exceptional circumstances.

In this case, the applicant does not meet either threshold ...
Application dismissed. 35

CaseChat Overview and Summary

The case of Note Fergusson v The Queen involved an appeal against the Court of Appeal’s decision to refuse an extension of time for a sentence appeal. Fergusson sought leave to appeal directly to the Supreme Court of New Zealand against both the Court of Appeal’s decision and the High Court’s 2003 sentencing decision. Fergusson contended that there should be a right to appeal to the Supreme Court against a decision refusing to extend time for appeal and argued that a direct appeal to the Supreme Court against the High Court’s sentencing decision should be allowed.

The primary legal issues before the court were whether there is a right to appeal to the Supreme Court against a decision of the Court of Appeal refusing to extend time for appeal and whether there is a statutory bar against a direct appeal to the Supreme Court against a High Court decision, unless there are compelling circumstances. The court had to determine if Fergusson's case met the threshold for such appeals under the Crimes Act 1961 and the Supreme Court Act 2003.

The Supreme Court found that there is no statutory right to appeal against a decision of the Court of Appeal refusing to extend time for appeal as per section 383A(1) of the Crimes Act 1961. The court acknowledged that while there is no statutory prohibition against a direct appeal to the Supreme Court, such an appeal would only be permitted in exceptional circumstances under section 14 of the Supreme Court Act 2003. The court concluded that Fergusson did not meet either threshold, and therefore dismissed the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established