TOBIN v R [2022] NZCA 226

TOBIN v R [2022] NZCA 226 [7 June 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA749/2021[2022] NZCA 226BETWEEN MAXWELL CHARLES DALLIMORE TOBINAppellantAND THE QUEENRespondentCourt: Miller, Clifford and Collins JJCounsel: Appellant in person A J Ewing for RespondentJudgment:(On the papers)7 June 2022 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed for want of jurisdiction. The High Court is the first appeal court for this appeal.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] This judgment addresses two issues for Mr Tobin's appeal: one of jurisdiction, the other evidence.Background[2] In 2018 Mr Tobin was convicted of wounding with intent to cause grievous bodily harm and sentenced to four years and six months' imprisonment. In March 2020 Mr Tobin successfully appealed his conviction in this Court.1 Whilst the Court did not uphold any of Mr Tobin's six challenges to his conviction, it found that the District Court Judge had not properly instructed the jury on self-defence, a defence Mr Tobin's counsel in the District Court had put squarely before the jury.[3] Allowing the appeal this Court ordered a retrial. At the commencement of his retrial on 29 November 2021 the Crown reduced the charge Mr Tobin faced to one of causing injury with reckless disregard for safety. After discussing the matter with standby counsel appointed by the Court, Mr Tobin entered a plea of guilty to that charge.[4] Judge McDonald, in his sentencing notes of 29 November 2021, described Mr Tobin's offending as follows:2[3] You and Mr Morris had known each other prior to this offending for approximately four years. You were neighbours. Sometime prior to 11 June 2016, you had become increasingly agitated, as I am sure your wife was as well, with Mr Morris' 11 dogs continuously barking when he was away. Your wife posted a message on Facebook accusing Mr Morris of animal abuse.[4] On 11 June 2016, Mr Morris became aware of the posting on Facebook. You and your wife were at home. He had been at a friend's place. He became upset with the comments that were on Facebook. He drove home to check on his dogs. Instead of driving to his home, however, he pulled into your driveway and deliberately drove past your house, before stopping on the road. He yelled out in your direction: "Be careful, be very," as I am told and accept by Mr Moroney, he said: "Be very fuckin careful." Mr Morris then drove back to his home.[5] You have heard him yelling, so you went outside to investigate. There was no sign of Mr Morris. You went back in, grabbed a battery for your Land Rover, which was parked in your driveway. Your Land Rover is an old vehicle which is used around the farm. It has no roof. You crash started your vehicle and then drove to Mr Morris' home. You pulled up into the top of his driveway. You yelled at him to come outside and sort it out. There was some revving and spinning of tyres. He came out. He came down to where you were in your vehicle. He pointed his finger at you and yelled at you to1 Tobin v R [2020] NZCA 66.2 R v Tobin [2021] NZDC 23491"sort your missus out", meaning "sort your wife out". You responded by punching him.[6] You then grabbed hold of his beard and drove at a low speed back down the driveway. He was trying to get away. There was a scuffle, you sitting in your Land Rover, him on the outside. You recklessly, not intentionally, drove towards a letterbox and Mr Morris hit the letterbox. That caused injury to him; punctured his lung and broke some ribs. You pulled him a short further distance onto the road and let him go. He fell. You then drove back to your house. He managed to get up, make his way to his house. He later found that he was suffering. He was taken to hospital in Kaitaia where he was for four days.[5] The Judge reached a starting point of 12 months' imprisonment but reduced that by five months because "[t]here was some fault on Mr Morris' part, some provocation".3 He sentenced Mr Tobin to seven months' imprisonment.[6] On 23 December 2021, Mr Tobin filed his notice of appeal in this Court against his conviction including the following grounds:(a) that he was coerced into pleading guilty to "an impossible story" by the threat of either a second trial or psychological assessment;(b) that he pleaded guilty knowing he could appeal;(c) that Judge McDonald refused to consider facts in support of his complaints about the relevant police constable, including that he failed to respond to call for peacekeeping assistance on the night of the incident; and(d) that Mr Morris was known to be a member of the local motorcycle riders club with a "history of unpredictable violence".Jurisdiction[7] In a minute of 10 February 2022, the Court directed that Mr Tobin's appeal be the subject of an oral hearing by a Divisional Court.3 At [10].[8] On 2 March 2022 the Crown filed a memorandum explaining it had come to their attention that this Court did not have jurisdiction to hear Mr Tobin's conviction appeal.[9] Section 230 of the Criminal Procedure Act 2011 provides:230 First appeal courts(1) The first appeal court for an appeal under this subpart is—(a) the District Court presided over by a District Court Judge, if the appeal is against a conviction entered by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or(b) the High Court, if the appeal is against a conviction entered by the District Court presided over by a District Court Judge, other than a conviction for—(i) a category 3 offence after the convicted person elected a jury trial; or(ii) a category 4 offence; or(c) either the Court of Appeal or the Supreme Court, in any other case.(2) For the purposes of subsection (1), if a convicted person elected a jury trial but subsequently withdrew his or her election before trial, the convicted person must be treated as if he or she had not elected a jury trial.(Emphasis added.)[10] The Crown noted Mr Tobin had withdrawn his election of trial by jury before pleading guilty and so, by reference to s 230(2), the first appeal court is the High Court. That jurisdictional issue had been overlooked until that point both by the Crown and by this Court.[11] Clifford J held a teleconference on that issue on 29 March 2022. As recorded in his minute of 5 April 2022, Mr Tobin did not agree with the Crown's assessment of jurisdiction. The procedure to be followed in such circumstances was not clear. However, in the civil jurisdiction, if the Registrar had rejected Mr Tobin's notice of appeal on the ground of a lack of jurisdiction, that decision could have been reviewed by Mr Tobin. Clifford J invited Mr Tobin to file a memorandum challenging theCrown's view or, alternatively, Mr Tobin could abandon his appeal in this Court and file an appeal in the High Court. If Mr Tobin did file such a memorandum, the Court would treat it as if it was a request for review of a Registrar's decision.[12] On 13 April 2022, Mr Tobin filed his memorandum. He referred to this Court's 2016 decision in Jackson v R, which held that where an appellant has been convicted in the District Court following his or her withdrawal of an election of a jury trial, substituted by an election of trial by judge alone, this Court was the first appeal court.4Mr Tobin also said he did not "change [my] plea to the charge" and that there was no guarantee the High Court would, as Clifford J suggested in his minute of 5 April 2022, hear his appeal out of time. This Court already has the material before it and so should deal with this appeal "to avoid further harm".[13] We do not agree with Mr Tobin's submissions.[14] Mr Tobin's reliance on Jackson v R is mistaken. Section 230(2) was added by Parliament following that judgment. As the explanatory note to the Court Matters Bill 2017 made clear:5Clause 34 amends section 219 (which specifies which court is the first court of appeal) by providing that if a defendant elects a jury trial and withdraws his or her elections before trial, the defendant must be treated as if he or she had not elected a jury trial. The intention of the changes made by this clause and clauses 35 to 38 is to reverse the effect of Jackson v R [2016] NZCA 627.Clauses 35 to 38 make an amendment to sections 230, 247, 272, and 297, respectively, that is similar to that made by clause 34.[15] In short, Parliament's clear purpose was to undo the effect of this Court's decision in Jackson. To that extent the decision is no longer good law. Therefore, and because of s 230(2), this Court plainly does not have jurisdiction to hear Mr Tobin's appeal.4 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.5 Court Matters Bill 2017 (285–1) at 8 (emphasis added).[16] Whilst it is possible for this Court to reconstitute itself as a Full Court of the High Court to determine this appeal,6 that jurisdiction is only exercised in very rare circumstances. As McGechan on Procedure notes:7It is rare for Judges of the Court of Appeal to sit as Judges of the High Court but they occasionally do so where that is the most practicable solution to a jurisdiction problem — for example, where an appellant brings two related appeals together and the Court of Appeal is the appropriate appeal court for one but the High Court is for the other: Harvey v R [2015] NZCA 420.[17] Another example is where the lack of jurisdiction is only realised after the hearing.8 Here Mr Tobin's appeal is in its early stages. Clifford J's minute of 5 April 2022, and this judgment, records the issue of jurisdiction that has arisen, which is normally picked up by the Court at an earlier stage. Further, in the 29 March 2022 teleconference Ms Ure indicated the Crown would not oppose an extension of time application in the High Court.[18] Notwithstanding the understandable stress and inconvenience caused to Mr Tobin by these issues, for the reasons given the appeal is dismissed for want of jurisdiction. Mr Tobin should now consider his position. He may refile his application, together with copies of this judgment and Clifford J's 5 April 2022 minute, in the High Court.Evidence[19] On 14 March 2022 Mr Tobin requested a copy of a video he prepared after the events on which Mr Tobin was convicted. That video was admitted as evidence in his first trial, as noted in Judge Orchard's ruling of 27 August 2018. 9 It showed, the Judge said, Mr Tobin "driving to the point where he says he grabbed the [victim's] beard and the point ultimately where he let him go".10 Mr Tobin also gave a running commentary in that video. Whilst the footage was played to the jury, the audio was not because otherwise Mr Tobin would be giving evidence of what happened in the6 Senior Courts Act 2016, s 103.7 Andrew Beck and others McGechan on Procedure (loose leaf ed, Thomson Reuters) at [SC103/02].8 For example, see Mediaworks TV Ltd v Staples [2019] NZCA 133.9 R v Tobin [2018] NZDC 17737.10 At [2].night in question without actually being either sworn or subjecting himself to cross-examination.11[20] On 17 March 2022, the Crown noted Mr Tobin was entitled to access that video exhibit under r 9(3) of the District Court (Access to Court Documents) Rules 2017. The Crown did not therefore object to Mr Tobin's request for access, but said if the Court agreed there was no jurisdiction for this Court to hear Mr Tobin's appeal, it may be more appropriate for the High Court to determine whether Mr Tobin's request should be granted.[21] The day after the 29 March 2022 telephone conference, Mr Tobin asked the Registry to ensure the video referred to in Judge Orchard's ruling was before the Court because it, in his view, showed "my story [as] regards mailbox damage and removes that as source of injury to Mr Morris".[22] It is not appropriate for this Court to offer its view on the video evidence. It will be a matter for the High Court in any appeal to determine the relevance and significance of that video, if that is necessary.Result[23] The appeal is dismissed for want of jurisdiction. The High Court is the first appeal court for this appeal.Solicitors:Crown Law Office, Wellington for Respondent11 At [4] and [6].