MIESSEN V R SC 59/2006
The application for leave to appeal was dismissed because the appellant failed to identify any arguable ground meeting s13 of the Supreme Court Act 2003; the issues were fact specific as found by the jury and Court of Appeal; complaints about counsel lacked supporting affidavit evidence or waiver of privilege; and...
Source-derived case information.
- Citation
- SC 59/2006
- Parties
- Appellant: Frank Louis Miessen; Respondent: The Queen
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 26 September 2006
- Procedural Posture
- Criminal Appeal / Application for Leave to Appeal to Supreme Court
- Outcome
- Application for leave to appeal dismissed
- Legal Topics
- Threatening to Kill, Leave to Appeal Under S13 Supreme Court Act 2003, Grounds of Appeal, Alleged Ineffective Assistance of Counsel, Waiver of Privilege, Judicial Bias/recusal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Frank Louis Miessen
Appellant
The Queen
Respondent
Procedural Posture
Criminal Appeal / Application for Leave to Appeal to Supreme Court
Legal Issues
- 1 Whether the appellant has any arguable ground of appeal meeting s13 of the Supreme Court Act 2003
- 2 Whether the matters raised are of general or public importance
- 3 Whether complaints about trial counsel without affidavit evidence or waiver of privilege can support an appeal
Ratio Decidendi
The application for leave to appeal was dismissed because the appellant failed to identify any arguable ground meeting s13 of the Supreme Court Act 2003; the issues were fact specific as found by the jury and Court of Appeal; complaints about counsel lacked supporting affidavit evidence or waiver of privilege; and no miscarriage of justice or justified basis for recusal was shown.
Court Disposition
Application for leave to appeal dismissed
Orders
- The application for leave to appeal is dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
MIESSEN V R SC 59/2006 26 September 2006IN THE SUPREME COURT OF NEW ZEALAND SC 59/2006 [2006] NZSC 77 FRANK LOUIS MIESSENvTHE QUEENCourt: Blanchard and Tipping JJ Counsel: Appellant in Person E M Thomas for Respondent Judgment: 26 September 2006JUDGMENT OF THE COURT The application for leave to appeal is dismissed. REASONS[1] Mr Miessen was convicted after a jury trial in the District Court at Christchurch of threatening to kill. He was ordered to appear for sentence if called upon to do so within twelve months. His appeal against conviction was dismissed by the Court of Appeal and he now seeks leave to appeal to this Court. He has not, however, identified any arguable ground of appeal which meets any of the criteria in s 13 of the Supreme Court Act 2003 and his application must therefore be dismissed. [2] None of the grounds sought to be argued raises any question of general or public importance. The case was essentially determined on its own facts, as foundby the jury. The pre-trial ruling, which Mr Miessen wishes to revisit, also turned upon the Judge's factual findings against him. [3] In large measure Mr Miessen's complaints concern the conduct of the trial by his then counsel. He did not however support his assertions with any affidavit evidence. Nor did he waive privilege, so his counsel had no opportunity of responding. The Court of Appeal nevertheless reviewed all of the matters raised and found no substance in them. We can see no basis upon which this Court could possibly take a different view. [4] It is suggested by Mr Miessen that two members of the Court of Appeal should not have sat on the appeal because of their prior association with the Crown Law Office. It is very doubtful whether any objection to their sitting could have been justified upon what appears to have been a rather tenuous basis. In any event, Mr Miessen made no objection at the time despite having been advised in advance of the composition of the Court. [5] We are not persuaded that there has been any miscarriage of justice in this case.Solicitors: Crown Law Office, Wellington