BRENT GAYTHORNE GEBBIE v R [2020] NZSC 9

BRENT GAYTHORNE GEBBIE v R [2020] NZSC 9 [19 February 2020]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 127/2019[2020] NZSC 9BETWEEN BRENT GAYTHORNE GEBBIEApplicantAND THE QUEENRespondentCourt: Winkelmann CJ, O'Regan and Ellen France JJCounsel: Applicant in personC A Brook for RespondentJudgment: 19 February 2020JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant, Mr Gebbie, was found guilty after a jury trial on a charge ofcriminal harassment. The sentencing Judge, Judge Thompson, imposed a sentence offour months' community detention and six months' supervision and also made aprotection order in favour of the complainant, who was the applicant's former partner.1[2] The applicant appealed to the Court of Appeal against both conviction andsentence. The appeal against conviction was founded on delays that had occurred priorto his trial in disclosure of a Family Court file that was thought to contain informationthat would be relevant to the applicant's defence. The applicant's counsel did notreceive a copy of the Family Court file until three working days prior to the1 R v Gebbie [2019] NZDC 9132.commencement of the trial. The Court of Appeal considered there was nothing toindicate that the Crown had deliberately delayed the disclosure of this material.2 TheCourt said that if the applicant's counsel had felt compromised by the late receipt ofthe material she would no doubt have raised the issue with the Judge and if necessarysought an adjournment.3 The Court noted that the applicant had not identifiedanything contained in the file that might have been put to the complainant incross-examination.4 It therefore found that no miscarriage of justice had occurred anddismissed the appeal against conviction.[3] The applicant's appeal against sentence was confined to a contention that theprotection order should not have been made. The applicant argued that s 123B of theSentencing Act 2002 did not allow a Judge to make a protection order in circumstanceswhere proceedings for the making of a protection order had already been before theFamily Court. The Court of Appeal rejected this argument as legally incorrect, findingthat s 123B(4) expressly permits a sentencing Judge to make a protection order infavour of a complainant who has filed proceedings under the Domestic Violence Act1995, even where the proceedings under that Act have not been determined.5 TheCourt also found that the argument failed on the facts because there was, in fact, noapplication for a permanent protection order awaiting hearing in the Family Court atthe time of sentencing.6 Thus it dismissed the sentence appeal as well.[4] The applicant seeks leave to appeal to this Court. If leave is granted, he willrenew the arguments that were rejected by the Court of Appeal.[5] We see the question as to the responsibility for late disclosure as being anentirely factual issue, and there is nothing in the material before the Court that givesany basis for concern as to the way the Court of Appeal dealt with that issue. Inrelation to the point about the interpretation of s 123B of the Sentencing Act, we donot consider that the matters raised by the applicant have sufficient prospect of successto justify a further appeal.2 Gebbie v R [2019] NZCA 540 (French, Lang and Mander JJ) at [13].3 At [14].4 At [14].5 At [19].6 At [19].[6] The applicant has not specified the grounds for the grant of leave to appeal onwhich he relies. We are satisfied that no matter of general or public importance arisesfrom the case, given that it is specific to the particular circumstances of the applicant.Nor do we consider that a substantial miscarriage of justice may have occurred or mayoccur unless the proposed appeal is heard. The criteria for the grant of leave to appealset out in s 74 of the Senior Courts Act 2016 are not therefore met.[7] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent