ASHOR CHRISTIAN GORGUS v R [2021] NZSC 146
Extension of time for filing the application was granted because the one-day delay was immaterial, but leave to appeal was refused because the grounds raised were case-specific, did not involve a point of general or public importance, and did not show error or risk of a miscarriage of justice, so it was not in the...
Source-derived case information.
- Citation
- [2021] NZSC 146
- Parties
- Applicant: Ashor Christian Gorgus; Respondent: The Queen
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 3 November 2021
- Procedural Posture
- Criminal Application for Leave to Appeal to the Supreme Court / Application for Extension of Time and for Leave to Appeal After Court of Appeal Decision
- Outcome
- Extension of time to apply for leave to appeal granted; application for leave to appeal dismissed.
- Legal Topics
- Leave to Appeal, Extension of Time, Search and Seizure, Admissibility of Evidence, Miscarriage of Justice
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ashor Christian Gorgus
Applicant
The Queen
Respondent
Procedural Posture
Criminal Application for Leave to Appeal to the Supreme Court / Application for Extension of Time and for Leave to Appeal After Court of Appeal Decision
Legal Issues
- 1 Whether the pre-trial ruling that the search of the backpack and arrest were lawful was erroneous
- 2 Whether the Court of Appeal erred in its evaluation under s 30 of the Evidence Act 2006
- 3 Whether discrepancies in witness evidence create a risk of miscarriage of justice
Ratio Decidendi
Extension of time for filing the application was granted because the one-day delay was immaterial, but leave to appeal was refused because the grounds raised were case-specific, did not involve a point of general or public importance, and did not show error or risk of a miscarriage of justice, so it was not in the interests of justice to grant leave.
Court Disposition
Extension of time to apply for leave to appeal granted; application for leave to appeal dismissed.
Orders
- Extension of time to apply for leave to appeal granted.
- Application for leave to appeal dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
ASHOR CHRISTIAN GORGUS v R [2021] NZSC 146 [3 November 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 103/2021[2021] NZSC 146BETWEEN ASHOR CHRISTIAN GORGUSApplicantAND THE QUEENRespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: Applicant in personJ A Eng for RespondentJudgment: 3 November 2021JUDGMENT OF THE COURTA The application for an extension of time to apply for leave toappeal is granted.B The application for leave to appeal is dismissed.____________________________________________________________________REASONSBackground[1] On 23 December 2019, Mr Gorgus pleaded guilty to charges of theft andreceiving stolen property. He was convicted and sentenced to 18 months'imprisonment.1 His appeal against conviction was dismissed on 5 August 2021.21 R v Gorgus [2019] NZDC 26079 (Judge Sharp) at [15].2 Gorgus v R [2021] NZCA 367 (Goddard, Venning and Peters JJ) at [43].Grounds of application[2] Mr Gorgus seeks leave to appeal against the Court of Appeal decision onessentially the same grounds he advanced in the Court of Appeal, namely that apre-trial ruling was erroneous.3 Additionally, Mr Gorgus claims that the Court ofAppeal failed to take proper account of discrepancies in witness evidence.Our assessment[3] The points that Mr Gorgus seek to raise relate to the particular circumstancesof his case. No point of general or public importance arises.4 Further, nothing raisedby Mr Gorgus suggests that the analysis of the Court of Appeal may have been in erroror that there may have been a risk of a miscarriage of justice.5 It follows that it is notin the interests of justice for leave to appeal to be granted.6Result[4] The applicant's notice of appeal was filed one day out of time.7 Given that thedelay was not material, we grant an extension of time to apply for leave to appeal.8[5] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent3 R v Gorgus [2019] NZDC 24941 (Judge Taumaunu). The pre-trial ruling had held that the searchof a backpack in the possession of Mr Gorgus and his arrest were lawful. In order to establish thejudge's decision about the legality of the search was wrong, Mr Gorgus would need to show boththat the search was unlawful and that the judge erred in his evaluation under s 30 of the EvidenceAct 2006.4 Senior Courts Act 2016, s 74(2)(a).5 Section 74(2)(b).6 Section 74(2).7 Supreme Court Rules 2004, r 11(1)(b).8 We also formally allow the filing of Mr Gorgus' amended application for leave as it was notopposed by the Crown.