MCLEAN v NEW ZEALAND POLICE [2023] NZHC 330

MCLEAN v NEW ZEALAND POLICE [2023] NZHC 330 [28 February 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-435[2023] NZHC 330BETWEEN GRANT (G-MANN) MCLEANAppellantAND NEW ZEALAND POLICERespondentHearing: 20 February 2023Appearances: P K Hamlin and A Harold for AppellantA Devathasan for RespondentJudgment: 28 February 2023JUDGMENT OF LANG J[on appeal against pre-trial decisions]Solicitors:Kayes Fletcher Walker, Manukau[1] Mr McLean entered guilty pleas in the District Court to eight charges ofdishonestly using a document to obtain property.1 He did so after pursuing twounsuccessful applications for discharge under s 147 of the Criminal Procedure Act2011 (CPA). Mr McLean has not yet been convicted or sentenced on the charges butnow seeks to appeal against those decisions under s 296 of the CPA.Background[2] The charges were laid after Mr McLean forwarded eight application forms tothe Department of Internal Affairs seeking to obtain copies of birth records orcertificates of named persons. Two of these application forms were to obtain copiesof birth records or certificates of District Court Judges, another was of a Minister ofthe Crown and the remainder held various positions in commerce or the PublicService. In each case Mr McLean used a pseudonym to obtain the information that hesought.[3] In seven cases the Department sent Mr McLean an email with a copy of thebirth certificate or record he had requested attached as a digital file. In the remainingcase it sent him a paper certificate by post.[4] The issue that Mr McLean asks the Court to determine in the present appeal iswhether the provision of this information resulted in Mr McLean obtaining propertyin terms of s 228 of the Crimes Act 1961.Procedural background[5] Mr McLean initially elected trial by jury. He then filed an application fordischarge under s 147 of the CPA. Judge Grau heard the application on 30 April 2021and dismissed it in an oral decision delivered on the same date.2[6] Mr McLean sought leave to appeal against the Judge's decision. On 7 October2021 the Court of Appeal dismissed the application on the basis that it had no1 Crimes Act 1961, s 228(1)(a).2 R v McLean [2021] NZDC 12611.jurisdiction to determine a pre-trial appeal against the refusal of a Judge to dischargea defendant under s 147.3[7] Mr McLean then sought judicial review of Judge Grau's decision. Harvey Jdismissed this application in a judgment delivered on 15 September 2022.4 Harvey Jdid not consider it was imperative for the High Court to intervene prior to the trial. Heconsidered the issues Mr McLean had raised would more appropriately be determinedat trial and, if necessary, on an appeal against conviction.5[8] The trial was scheduled to commence on 4 October 2022. On that dateMr McLean renewed his application for discharge under s 147. Judge McNaughtondismissed the application on the ground that there had been no material change ofcircumstances since the delivery of Judge Grau's decision that would justify theapplication for discharge to be reconsidered.6 Judge McNaughton also indicated that,even if he had accepted there had been a change of circumstances, he would havedecided the application in favour of the Crown.7Jurisdiction[9] Before the hearing commenced, I raised with counsel a concern I heldregarding the jurisdiction of the Court to determine the appeal. Section 296 of theCPA provides as follows:296 Right of appeal(1) This section applies if a person has been charged with an offence.(2) The prosecutor or the defendant may, with the leave of the first appealcourt, appeal under this subpart to that court on a question of lawagainst a ruling by the trial court.(3) The question of law in a first appeal under this subpart must arise—(a) in proceedings that relate to or follow the determination of thecharge; or3 McLean v R [2021] NZCA 516.4 McLean v Manukau District Court [2022] NZHC 2370.5 At [22].6 R v McLean [2022] NZDC 24648.7 At [12]-[15].(b) in the determination of the charge (including, withoutlimitation, a conviction, an acquittal, the dismissal of the chargeunder section 147, or a stay of prosecution).(4) The question of law must not be one that—(a) arises from a jury verdict; or(b) arose before the trial and has already been decidedunder subpart 2.[10] During the hearing I indicated that I would hear argument on the point of lawthat the appeal raises and attempt to determine it on the merits. However, I am nowsatisfied that I do not have jurisdiction to hear the appeal and that it must be dismissedon that basis. This flows from the fact that the two decisions Mr McLean seeks tochallenge on appeal relate to the dismissal of his applications for discharge under s 147of the CPA.[11] It is now well established that s 296 provides the prosecution with a right ofappeal against a pre-trial decision to discharge a defendant under s 147. However, itis also well established that s 296 does not provide a defendant with a correspondingright to appeal on an issue of law when an application for discharge is dismissed. Thisis exemplified in the present case by the fact that the Court of Appeal dismissedMr McLean's appeal against Judge Grau's decision.[12] The principle has been applied on numerous occasions beginning with thedecision of the Court of Appeal in D (CA 716/2015) v R, in which the Court consideredan appeal against a refusal to grant a discharge under s 322 of the Oranga TamarikiAct 1989.8 The Court observed:[14] Mr Shamy accepted that the reference in s 296(3)(b) to "the dismissalof the charge under s 147 or a stay of prosecution" was a reference to caseswhere a stay or dismissal has actually been granted by the trial court, notwhere, as in this case, it has been refused. In other words, the effect of thereference in s 296(3)(b) to dismissals and stays is the same as the old s 318Aof the Crimes Act. It confers a right on the Crown to appeal a stay or dischargeon a question of law because the effect of the stay or dismissal decision is tobring an end to the prosecution. In contrast, the refusal to grant a stay is not a"determination" of the proceeding. It is the opposite. It means the proceedingwill continue.8 D (CA716/2015 v R [2016] NZCA 190.[13] Subsequently, in Rowell v Commissioner of Inland Revenue, the Court ofAppeal confirmed that the same principles applied to the dismissal of an applicationfor discharge under s 147 of the CPA.9 In that case the Court observed:[22] We decline Mr Rowell's invitation to reconsider the jurisdictionalruling in D. We note Mr Rowell does not seek to distinguish D on the basis itwas decided under the [Oranga Tamariki] Act rather than the CriminalProcedure Act. That is a responsible position to take. D is authority for thepoint there is no jurisdiction under s 296 for an appeal on a question of lawagainst a decision refusing to dismiss a charge so it applies equally to s 147 ofthe Criminal Procedure Act.[14] In Lyttle v R the Court of Appeal indicated that there may be rare cases in whicha defendant can show that the trial court's decision has, effectively, resulted in adetermination of the proceeding.10 However, that is not the position here because thedecisions Mr McLean seeks to challenge held that the charges were to proceed to trial.The proceeding was subsequently determined by the entry of the guilty pleas.[15] Mr Hamlin, counsel for Mr McLean, relies upon the approach taken by theCourt of Appeal in Kahia v R.11 In that case the trial judge had ruled that the appellantwas unable to rely on a particular defence. The appellant then entered a guilty pleaand filed an appeal to the Court of Appeal under s 296. No conviction was enteredpending determination of the appeal. The Court of Appeal allowed the appeal anddirected a new trial. That case is obviously significantly different to the presentbecause it did not involve an appeal against the dismissal of an application fordischarge under s 147. It is therefore of little precedential value.Result[16] The appeal is dismissed for want of jurisdiction.Lang J9 Rowell v Commissioner of Inland Revenue [2016] NZCA 471.10 Lyttle v R [2019] NZCA 329, [2019] 3 NZLR 636 at [35](b).11 Kahia v R [2019] NZCA 612.