GAUNT v NEW ZEALAND POLICE [2017] NZCA 178
Leave to bring a second appeal was granted because the District Court judge plainly failed to apply the statutory criteria and provide reasons—specifically failing to account for the complainant's provocative conduct and the appellant's personal circumstances—which raised a real risk of miscarriage of justice such...
Source-derived case information.
- Citation
- [2017] NZCA 178
- Parties
- Applicant: Jamin Gaunt; Respondent: New Zealand Police
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 12 May 2017
- Procedural Posture
- Criminal Appeal / Application for Leave to Bring a Second Appeal in the Court of Appeal; Leave Granted
- Outcome
- Application for leave to bring a second appeal granted.
- Legal Topics
- Discharge Without Conviction, Conviction, Proportionality, Procedural Fairness, Miscarriage of Justice
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jamin Gaunt
Applicant
New Zealand Police
Respondent
Procedural Posture
Criminal Appeal / Application for Leave to Bring a Second Appeal in the Court of Appeal; Leave Granted
Legal Issues
- 1 Whether the District Court judge failed to consider the complainant's provocative conduct (spitting) when assessing gravity of the offending
- 2 Whether the District Court judge failed to consider the applicant's personal and employment circumstances when assessing the effect of conviction
- 3 Whether refusal to allow time for a written application and failure to give reasons and apply statutory criteria amounted to a miscarriage of justice
Ratio Decidendi
Leave to bring a second appeal was granted because the District Court judge plainly failed to apply the statutory criteria and provide reasons—specifically failing to account for the complainant's provocative conduct and the appellant's personal circumstances—which raised a real risk of miscarriage of justice such that further appellate consideration was warranted.
Court Disposition
Application for leave to bring a second appeal granted.
Orders
- Leave to bring a second appeal is granted
Full Case Text
Judgment text and source record
1 paragraphs
GAUNT v NEW ZEALAND POLICE [2017] NZCA 178 [12 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA568/2016[2017] NZCA 178BETWEEN JAMIN GAUNTApplicantAND NEW ZEALAND POLICERespondentCourt: Kós P, Courtney and Williams JJCounsel: J P Miller for AppellantJ Cheng for RespondentJudgment:(On the papers)12 May 2017 at 4.00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is granted.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] Following a judge alone trial in the District Court Mr Gaunt was convicted on one charge of common assault (spitting).1 He was not permitted time to make a written application for a discharge without conviction.2 His oral application for a discharge without conviction was refused without reasons being given and without the District Court Judge considering the relevant statutory criteria. His appeal to the High Court was dismissed by Cull J.31 Crimes Act 1961, s 196.2 Contrary to r 2.12(2)(p) of the Criminal Procedure Rules 2012.3 Gaunt v New Zealand Police [2016] NZHC 2505.[2] We allow Mr Gaunt's application for leave to bring a second appeal. In accordance with s 340(3)(a) of the Criminal Procedure Act 2011 we are not required to give reasons for doing so.[3] The ground of appeal is whether a miscarriage of justice occurred as a result of the Judge failing to take account of the complainant's provocative act in spitting atMr Gaunt first in assessing the gravity of the offending, failing to take account of Mr Gaunt's difficult personal circumstances in assessing the effect of conviction on his employment prospects, and the effect of these two factors on the proportionality assessment.Solicitors:John Miller Law for ApplicantCrown Law Office, Wellington for Respondent