NEW ZEALAND POLICE v BURROWS [2020] NZHC 930

NEW ZEALAND POLICE v BURROWS [2020] NZHC 930 [7 May 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-9[2020] NZHC 930BETWEEN NEW ZEALAND POLICEApplicantAND WAYNE JOHN BURROWSRespondentOn the papersCounsel: A R T Garrick and N Azam for ApplicantW J Burrows in personJudgment: 7 May 2020JUDGMENT OF CHURCHMAN JIntroduction[1] On 13 March 2017, Mr Burrows (the respondent) was charged with two countsof criminal harassment under s 8(1)(b) of the Harassment Act 1997. On 27 July 2017,District Court Judge Sainsbury ordered an assessment report on the respondent underss 38(1)(a) and (b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003(the CPMIP Act). Following this, a number of adjournments and procedural issuesdelayed the case, until 19 December 2019, where District Court Judge Mill granted astay of proceeding to the respondent on the basis that Judge Sainsbury had nojurisdiction to order a s 38 report in his 27 July 2017 ruling, because the respondentwas not "in custody", as required under s 38(1) of the CPMIP Act.1 Judge Mill ruledthat the CPMIP procedure had caused a delay that was undue and unjustified, and thatconsequently, a stay of proceedings should be ordered as a remedy.21 Police v Burrows [2019] NZDC 25097 at [57].2 Police v Burrows, above n 1, at [66]-[70].[2] The New Zealand Police (the applicant) now seek leave to bring an appealunder s 296 of the Criminal Procedure Act 2011 (CPA) on two grounds:(a) whether the District Court Judge was correct to find that the respondentwas not "in custody" at the time the s 38 report was ordered; and(b) if so, whether a stay was the appropriate remedy.[3] The respondent opposes leave to appeal.[4] For the reasons set out in this decision, I conclude that both grounds of appealare questions of law for the purposes of s 296 of the CPA, and that under the factorsset out in R v Leonard (discussed below), leave to appeal should be granted.BackgroundFactual background[5] The two criminal harassment charges against the respondent relate to hisinteractions with a single complainant, A, who formed a friendship with the respondentthrough a bridge club in 2008. After A moved to Wellington in 2013, the respondentbegan to send her unsolicited letters, postcards and emails. From 7-14 March 2016, Areceived a number of postcards from the respondent, which contained a number ofinsulting and derogatory comments.[6] On 21 November 2016, A encountered the respondent (who tried to approachher and later yelled at her) at Auckland Airport. A applied for a restraining order in2016, but this was not granted until March 2017.[7] On 14 February 2017, the respondent allegedly sent 18 pages of emails to Athat contained more insulting and derogatory comments. It is also alleged that on17 February 2017 the respondent approached A on her way to work in centralWellington and that when he saw her he yelled abusive comments at her.District Court procedural history[8] The procedural history of this case is lengthy, and due to a number ofadjournments and appeals, it has progressed at what District Court Judge Milldescribed as a "glacial" pace.3 In his 19 December 2019 decision, Judge Mill attachedan appendix detailing the procedural history of the case so far. A copy of that isattached as an appendix to this decision. I will now briefly set out the key proceduralevents.[9] The respondent's first appearance on the two charges of criminal harassmentwas in the District Court at Wellington on 13 March 2017. He was granted bail. Heappeared again on 27 March 2017, at which time the Judge ordered a s 38 report underthe CPMIP Act.[10] This was completed by Dr Barry-Walsh on 5 May 2017. While he concludedthat the respondent did not have an available defence of insanity and that he was fit tostand trial, Dr Barry-Walsh did note the existence of some underlying mental healthissues and that it was possible that the respondent's mental state might yet deteriorateto a point where his fitness might be affected.[11] At a case review hearing on 27 July 2017, Mr Burrows' attendance wasexcused. At this time, the Court Mental Health Liaison Officer advised of concernsabout a possible deterioration in Mr Burrows' mental health. It was at this point inwhich the presiding Judge, Judge Sainsbury, ordered an updated report pursuant tos 38 of the CPMIP Act.[12] Dr Barry-Walsh provided this updated report on 21 September 2017, againconcluding that Mr Burrows did not have a defence of insanity and was fit to standtrial. Two adjournments were subsequently granted in order for defence counsel toconsider their position in light of the updated reports.3 Police v Burrows, above n 1, at [14].[13] On 26 October 2017, Judge Mill gave a decision that the procedure pursuantto s 9 of the CPMIP Act was triggered, noting that Mr Burrows was likely to be self-represented. The hearing was scheduled to occur on 23 November 2017.[14] The substantive s 9 hearing did not occur on 23 November 2017 as Mr Burrowsindicated that he required the complainant and other witnesses to be present for thepurposes of cross-examination. Judge Hobbs heard argument on this point and issueda reserved judgment on 8 December 2017 declining Mr Burrows' application forviva voce evidence to be called.[15] Mr Burrows' appeal of this decision was heard on 9 May 2018, Ellis J issuinga judgment on 4 July 2018 dismissing the appeal.[16] On 24 October 2018, I dismissed an appeal against an earlier decision ofJudge Davidson making a restraining order against the respondent.[17] On 12 February 2019, Judge Butler delivered a judgment under s 9 of theCPMIP Act, ruling that the s 9 involvement inquiry was made out and ordering afurther s 38 report from a second health assessor for the purposes of the s 14 fitnessinquiry. An appeal against this decision was dismissed by me on 29 May 2019.District Court decision of Judge Mill[18] On 19 December 2019, Judge Mill issued a judgment granting a stay ofproceeding to the respondent on the basis that Judge Sainsbury had no jurisdiction toorder a s 38 report in his 27 July 2017 ruling, because the respondent was not "incustody", as required under s 38(1) of the CPMIP Act.4[19] After considering the background to the case and the submissions of bothparties, the Judge noted that the central question in deciding whether to grant a staywas "whether a fair trial is possible in light of the prejudice caused to the defendantby the delay".54 Police v Burrows, above n 1, at [57].5 At [18], citing CT v R [2014] NZSC 155 at [30].[20] Section 25(b) of the New Zealand Bill of Rights Act 1990 (NZBORA), wasthen considered by the Judge. Where s 25(b) is breached, following Williams v R, astay may be granted as a remedy.6 The Judge acknowledged that there is a two-steptest to determine whether proceedings ought to be stayed in order to remedy a breachof the s 25(b) right to be tried without undue delay.7 First, the applicant must provethat the delay was in fact undue. Second, the applicant must prove the delay was soegregious that a stay is justified as no other remedy would suffice.[21] In considering these two elements, the Judge held that the delay was not undueor unjustifiable under the grounds set out in Williams v R.8[22] However, the Judge did find that the ordering of the s 38 report on 27 July 2019was not made in accordance with the CPMIP Act, in that a person who is not inattendance at a hearing is not in the custody of the Court, such that the Court hasjurisdiction to order a report under s 38 of the CPMIP Act. Consequently, the Judgeaccepted the respondent's submission that the delays in the case from 27 July 2017were largely occasioned by a procedure which has been commenced without properjurisdiction.9[23] According to the Judge, while the "substantial systemic delay" in thecircumstances would not have been undue if the s 38 process had been legitimatelyengaged, this was not the case here.10 Instead, the delay had been occasioned by aprocedure that was "almost certainly without jurisdiction".11 As a result, the delaywas undue, unjustified and egregious, justifying a stay:12[64] So there has been a substantial systemic delay but not unduly soduring the process if it had been legitimately engaged but that procedure wasalmost certainly without jurisdiction. His failure to apply for judicial reviewin the intervening years in my view does not detract from the consequentunjustifiable delay.[65] Delays occasioned by Mr Burrows' appeals would not have beennecessary had the orders not been made.6 Williams v R [2009] NZSC 41.7 R v Vaihu [2010] NZCA 145 at [126]; Williams v R, above n 6.8 Police v Burrows, above n 1, at [43].9 At [59].10 At [64].11 At [64].12 At [64]-[66].[66] In my view, given my acceptance of his submissions on these mattersI find that the delay occasioned by the CP(MIP) Act procedure has been undueand unjustified and in my view, egregious.Position of the partiesThe applicant[24] Counsel for the applicant seeks leave to appeal the decision of Judge Mill togrant a stay of proceedings. Two grounds are advanced:(a) whether the District Court Judge was correct to find that the respondentwas not "in custody" at the time the s 38 report was ordered; and(b) if so, whether a stay was the appropriate remedy.[25] Before detailing their specific submissions for each ground, counsel for theapplicant addressed the question of jurisdiction to appeal the decision of Judge Millunder s 296 of the CPA. Counsel submitted that under s 296(3)(b), a prosecutor may,with leave of the first appeal court, appeal on a question of law against a ruling by thetrial court, and that the question of law must arise in the proceedings that relate to orfollow the determination of the charge, or in determination of the charge (whichexplicitly includes stays).13 Counsel submitted that both of the proposed grounds ofappeal constituted questions of law under s 296(3)(b).[26] With regard to the first ground, counsel submitted that it constituted a questionof law on the basis that it concerned interpretation of a statutory provision, namelys 38 of the CPMIP Act. According to counsel, the ground arises as a "determinationof the charge" under s 296(3)(b) of the CPA, because Judge Mill's determination thatthe District Court lacked proper jurisdiction when ordering a s 38 report on 27 July2017 when the respondent was potentially not "in custody" was central to his findingthat the resulting delays from the CPMIP process were so undue, unjustified andegregious as to justify a stay.13 Criminal Procedure Act, s 296(3)(b).[27] Following their submission that the first ground constituted an error of lawunder s 296(3)(b), counsel set out three main factors supporting a grant of leave toappeal under this ground. Firstly, counsel submitted that this ground was a novelquestion of general importance. Specifically, the issue of whether a person not presentin Court is "in custody" for the purposes of s 38 of the CPMIP Act has wideimplications for the Courts, and according to counsel, no authority exists on thisparticular matter. Counsel referred to Togia v Police, where the Court of Appeal dealwith a similar question of law: whether a person is "in custody" for the purposes ofs 38 if they are on bail, but present in Court at the time the s 38 report was ordered.14The Court of Appeal found that to limit a Court's power under s 38 to exclude thoseon bail would create a "substantial lacuna" in the operation of s 38.15 Counselsubmitted that the circumstances give rise to a similarly important issue here, in thatthe interpretation of "in custody" by Judge Mill could create a "substantial lacuna" inthe operation of s 38.[28] The second factor in support of granting leave to appeal on the first ground wasthat the merits of the proposed appeal were strong. This argument was based on thepropositions that:(a) in Togia v Police, the Court of Appeal approved the High Court'sinterpretation that a person who appears on bail is in the custody of theCourt for the purposes of s 38 because they are under the supervisionof the Court at that time, which supports the applicant's argument thatthe respondent was in custody;(b) the plain meaning of the phrase "in custody" is capable of including aperson whose absence has been excused by the Court but is beingrepresented by their counsel at their criminal proceeding;(c) it would frustrate the purpose and operation of the CPMIP if therespondent was not deemed to be "in custody" in these circumstances;and14 Togia v Police [2012] NZCA 544.15 Togia v Police, above n 14, at [16].(d) a purposive approach to statutory interpretation requires a moreexpansive interpretation to be given to "in custody" than that adoptedby Judge Mill.[29] The final factor put forward by counsel was that there was no alternativeremedy, as no other appeal or review process for Judge Mill's interpretation of "incustody" under s 38 of the CPMIP was available.[30] With regard to the second ground, counsel submitted that it constituted aquestion of law because it raised the issue of whether Judge Mill applied the correcttest when granting a stay. Counsel referred to R v Vaihu as an analogous case wherebya similar issue was framed by the Court of Appeal as a question of law:16[22] Here, the question asks whether a stay was the correct remedy, giventhe Judge's factual finding of undue delay. The task is not to ask whethersomething in fact happened, or whether something can be inferred from thefacts. The question is the legal consequence of facts as found by the Judge.To put this another way: given the undue delay and all the surroundingcircumstances — which could be described as questions of fact — is thequestion whether a stay is a reasonable and proportionate response a questionof law? This division of the inquiry corresponds to what is generally seen tobe the correct approach for remedies for breaches of s 25(b) of theNew Zealand Bill of Rights Act 1990.[23] At least for the purposes of this provision we are of the view thatwhether the remedy granted was the appropriate one is a question of law.There are parallels in other areas of the law. For instance, in the civil law theremight well be an argument as to whether damages or specific performance isthe appropriate relief for a found breach of contract. The Court mightconceivably, having identified the breaches, take the view that the degree ofpersonal supervision that would be required of the Court is such that thereshould not be an order for specific performance. It is difficult to see why sucha determination would not amount to a question of law, for the legalconsequences of facts as found by a Judge have long been regarded as aconventional question of law.[24] In the result, we take the view that there is a question of law fordetermination by this Court.[31] Counsel then set out four factors supporting a grant of leave to appeal underthe second ground. Firstly, that there was an identifiable error of law. It was submittedthat Judge Mill rightly noted CT v R, where the Supreme Court set out a range offactors relevant to the assessment of whether a fair trial was possible in light of the16 R v Vaihu [2010] NZCA 145 at [22]-[24].prejudice caused to the respondent by delay.17 Furthermore, Judge Mill alsoacknowledged that following R v Antonievic, a stay was an "extreme step only to betaken in the clearest of cases".18 However, counsel submitted that Judge Mill failed toconsider any of the factors set out in CT v R when considering a stay, and that thesecircumstances did not fall into the category of the "clearest of cases".[32] Secondly, counsel submitted that the Judge erred in placing weight on anirrelevant matter, namely by considering the time the respondent had spent onrestrictive bail during the delay as a factor in granting a stay, when the Supreme Courtin Williams v R had observed that the more appropriate remedy where there has beenundue delay of a trial (unless the delay was egregious) was a reduction in the term ofimprisonment.19[33] Thirdly, counsel submitted that Judge Mill failed to give weight to relevantconsiderations. These included the fact that the delays had often been caused by therespondent himself, and that the respondent had not sought judicial review ofJudge Sainsbury's 17 July 2017 decision to order a s 38 report, despite the respondenthaving sought judicial review of other decisions made in the CPMIP process.According to counsel, this has allowed the respondent to draw out the proceedings foras long as possible through sequential challenges to decisions and then subsequentlyuse that delay to support a stay.[34] Finally, counsel submitted that, as with the first ground, there is no alternativeremedy or review process other than this appeal.The respondent[35] The respondent (representing himself) concurred with counsel for theapplicant's observation that applications for leave to appeal under s 296 of the CPAcan only be made on questions of law.17 CT v R, above n 5.18 R v Antonievic [2013] NZCA 483 at [54].19 Williams v R, above n 6, at [18].[36] In his response to the first ground advanced by counsel for the applicant, therespondent submitted that while the first ground was a question of law, the particularlaw pertaining to this question had already been settled. The respondent referred toTogia v Police, which he asserted supported the notion that a person who hassurrendered to bail was in the custody of the Court. In particular, the respondent reliedon the observations of Dobson J at [21] and [26], as well as the Court of Appeal'sultimate decision to uphold Clifford J's interpretation in the High Court that when theappellant surrendered to his bail for the Court appearance at which a report wasdirected, he was in the custody of the Court.20[21] The scope of the Court's powers under s 38 is therefore to be analysedon the basis that if the pre-condition of the person being "in custody" excludesaccused persons who have already been bailed, then there would be an absenceof power on the part of the Court to require reports in those cases. Whenpressed, Mr Ellis acknowledged that such a gap in the Court's powers toprogress issues under CPMIP in this respect would be an unintended oversightby Parliament, rather than an intentional gap.[26] Those other statutory references are consistent with a person requiredto be at Court to answer bail being in a form of custody of the Court,irrespective of whether they are constrained to a particular part of a courtroomor indeed cells attached to the Court.[37] The respondent submitted that given the ruling in Togia v Police, and the factthat the order by Judge Sainsbury to commission a s 38 report was made in his absencewhen he had not surrendered to bail, he was not in custody of the Court when the orderwas made, and that this was settled law.[38] In his response to the second ground advanced by counsel for the applicant, therespondent submitted that this ground was not a question of law, because the grantingof a stay was an exercise of the Judge's discretion that required a factual (rather thanlegal) assessment of a number of factors.[39] According to the respondent, these factors included inaccurate informationgiven to the Court,21 the respondent's submission that the matter would be concluded20 Togia v Police, above n 14, at [21], [26] and [32].21 Police v Burrows, above n 1, at [50].but for the ss 9 and 38 procedures slowing the hearing process,22 his submission thathe had been on restrictive bail terms for longer than necessary,23 and that the charges(while not minor) were unlikely to give rise to a substantial penalty, particularly giventhat a restraining order had been issued at around the time of the offending.24[40] The respondent characterised this assessment as "not a matter of law but of afactual assessment of the weight of each factor", and referred to Adams on CriminalLaw, which states:25Consistent with the approach taken to s 78 [the predecessor to s 296], anappeal on a question of law during a judge-alone trial should be "reserved forspecial cases where true questions of law are involved": see Alexander vMinistry of Agriculture and Fisheries HC Wellington AP181/92, 4 March1993. It is generally undesirable to appeal on a question of law before all therelevant facts are ascertained: Police v Liddington (1987) 2 CRNZ 690 (HC),at 691; Commissioner of Inland Revenue v West-Walker [1954] NZLR 191(CA) at 202. See also Tipping J's view in Police v O'Neill [1991] 3 NZLR594 (HC) that a case should generally be stated under s 78 only if the questionof law was clearly necessary for the decision and was likely to be decisive oneway or the other.Approach to appeal[41] Section 296 of the CPA provides:(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; or(b) in the determination of the charge (including, withoutlimitation, a conviction, an acquittal, the dismissal of thecharge under section 147, or a stay of prosecution).(4) The question of law must not be one that—(a) arises from a jury verdict; or22 At [60].23 At [61].24 At [62].25 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters)at [CPA296.03].(b) arose before the trial and has already been decided undersubpart 2.[42] Therefore, as explicitly expressed in the statutory provision, an appeal unders 296 must be an appeal on a question of law against a ruling by the trial Court.Section 296 confers a right on the Crown to appeal a stay or discharge on a questionof law because the effect of the stay or dismissal decision is to bring an end to theprosecution.26 In Lyttle v R, upon assessment of the relevant case law and the text andpurpose of the provision, the Court of Appeal held that:27The jurisdiction in s 296(3) is only likely to apply in relation to decisionsdealing with a defendant's application to dismiss a charge or stay a prosecutionwhere:"(a) the prosecution wishes to appeal a trial court's decisiondismissing a charge or staying a prosecution; or(b) in rare cases where the defendant can demonstrate a trialcourt's decision has, effectively, resulted in a determination ofthe proceeding."[43] In this case, if they are indeed questions of law, the applicant's grounds forappeal appear to fit within the first category of Lyttle v R.[44] In Wilson v R, the Supreme Court observed that a trial Judge's decision onwhether or not to grant a stay is discretionary, meaning that in accordance with theapproach that the appellate courts generally take to discretionary decisions, anappellate court would not interfere with a Judge's decision that was reasonably opento him or her, even if that Court would reach a different conclusion considering thematter afresh.28 However, the Court also noted that the position may be different inthe context of a stay, given the fundamental values at stake.29[45] Finally, and more generally, in R v Leonard the Court of Appeal set out a non-exhaustive criteria of factors to be considered in determining whether leave to appeal26 D (CA716/2015) v R [2016] NZCA 190 at [14].27 Lyttle v R [2019] NZCA 329 at [35].28 Wilson v R [2015] NZSC 189 at [27].29 Wilson v R, above n 28, at [27]-[29].before a trial should be granted. These factors were adopted in the more recent caseof Hohipa v R.30 These are:31[13] Factors pointing towards the granting of leave include:(a) the argument is based on a novel point or is of significance forother cases;(b) there is conflicting authority covering the issue to bedetermined on the proposed appeal;(c) the application relates to an identified error of law;(d) the application involves the admissibility of evidence that isimportant to one of the parties;(f) the matter cannot be dealt with adequately in any appeal afterthe trial or there are only limited post-trial appeal right (as willoften be the case for Crown applications); and(g) the proposed grounds of appeal are arguable.[14] Factors pointing towards refusing leave include:(a) the issue will need to be revisited at trial or is best dealt within the context of the trial;(b) the application involves the admissibility of evidence thatwould not make a significant difference to the course of thetrial and is unlikely to lead to post conviction appeal success;(c) the issue is best dealt with in the context of any postconviction appeal;(d) the application challenges a factual finding, especially wherethe finding rests on an assessment of credibility;(e) the application challenges the exercise of a discretion. In suchcases leave should not be granted unless there are groundsarticulated which point to the fact that the judge has, inexercising his or her discretion, acted on some wrongprinciple, has given weight to extraneous or irrelevantmatters, has failed to give sufficient weight to relevantconsiderations, or is plainly wrong;(f) the appeal will cause unnecessary delay: for example wherethere is not time to hear the appeal before the trial commencesor where it would unduly delay the trial; and(g) the proposed appeal is without merit.30 Hohipa v R [2015] NZCA 73 at [27].31 R v Leonard [207] NZCA 452 at [13]-[14].Relevant law and analysisGround one[46] Both parties have accepted that this first ground is a question of law. The issueis whether this is a novel or significant point of law, or whether it is already settledfollowing Togia v Police. Adams on Criminal Law notes that the expression "incustody" in s 38 of the CPMIP Act is undefined.32 However, following the case ofTogia v Police (referred to in the submissions of both parties above), which overturnedthe earlier case of R v McKay,33 when a person on bail appears in Court, they are underthe supervision of the Court and thus "in custody" for the purpose of s 38(1) when thereport is ordered, even if they are to be admitted or re-admitted to bail.34[47] Contrary to the submissions of the respondent, it cannot be said that thequestion posed in the first ground of the applicant's appeal is settled law. While theruling in Togia v Police clarifies the jurisdiction of the Courts to make orders unders 38 when a person is on bail but present in Court, the scope of the question in the firstground of this case is much broader. Effectively, the applicant seeks clarification onwhether the interpretation of "in custody" is sufficiently broad so as to include a personwho is physically absent from the Court at the time in which the report is ordered.This does not appear to be settled law, particularly given that the expression "incustody" is undefined.[48] Consequently, the first ground can be considered a novel question of law whichmay have significance for other cases. Following R v Leonard, if an argument is basedon a novel point or is of significance for other cases, then this is a factor pointingtowards the granting of leave.35 Conversely, it must be acknowledged that the appealmay cause unnecessary delay (a factor pointing against leave to appeal in R v Leonard)to a case that has already taken a significant period of time to progress. However, assubmitted by the counsel for the applicant, this is an issue where the applicant has noalternative remedy, and as discussed at [27] above, the grounds for appeal are arguable.These are two additional factors detailed in R v Leonard which point towards the32 Adams on Criminal Law – Criminal Procedure, above n 25, at [CM38.03].33 R v McKay [2009] NZCA 378.34 Togia v Police, above n 14, at [26]-[32].35 R v Leonard, above n 31, at [13].granting of leave.36 Combined with this ground being a novel question of law whichmay have significance for other cases, the factors weigh in favour of granting leave toappeal. As a result, I conclude that leave should be granted on the first ground ofappeal.Ground two[49] The respondent opposes counsel for the applicant's submission that this secondground is a question of law. Consequently, the issue under this second ground iswhether Judge Mill's decision to grant a stay (and whether it was the appropriateremedy) is an exercise of discretion that entails a factual balancing of variousconsiderations, or a question of law.[50] In Brown v R, the Court of Appeal held that "questions of law" in the contextof s 296(2) must raise one or more of three standard errors classified as creating aquestion of law:37(a) a misdirection of law apparent in the decision (what Fisher J called"a conventional legal question on unchallenged facts");(b) oversight of a relevant matter, or consideration of an irrelevant matter;or(c) a factual finding unsupported by any evidence, or an omission to drawan inference of fact which is the only one reasonably possible on theevidence.[51] In R v White, Nation J noted that in most cases a decision by a Judge in theexercise of a discretion will not raise a question of law (although a decision as towhether the discretion exists or whether the conditions for its exercise are met doesraise a question of law).38 Nation J then went on to observe:39[22] In H v Police, MacKenzie J followed the stance of the Court of Appealin R v Lutomski in stating that the process of weighing of factors inthe exercise of judicial discretion does not involve a question of law.[23] In Gray v Thom, Penlington J held that:36 At [13].37 Brown v R [2015] NZCA 325 at [16] (citations omitted).38 R v White [2015] NZHC 1654 at [20].39 R v White, above n 38, at [22]-[23] (citations omitted). an appellate Court will be slow to interfere with the exercise ofa discretion in relation to an adjournment. An adjournment willonly be granted for good reason. The ultimate issue is the need todo justice between the parties; that is both parties. The questioncan be simply stated: is an adjournment expedient in the interestsof justice?[52] The respondent's submission on the second ground characterises it as aquestion concerning the weighing of factors in the exercise of judicial discretion,which following R v White (and the authorities cited in the Adams on Criminal Lawexcerpt referred to by the respondent at [40] above), does not give rise to a questionof law.[53] However, this case is arguably similar R v Vaihu (discussed at [30] above),where a similar ground of appeal, namely the question of whether a stay was anappropriate remedy, was considered to be a question of law. Also, as submitted by theapplicant (at [32]-[33] above), the second ground of appeal raises a potential error bythe Judge of oversight of a relevant matter, or consideration of an irrelevant matter,which under category (b) in Brown v R, creates a question of law.[54] Finally, the observations of the Supreme Court in R v Wilson are arguablyrelevant here, in that while the decision of a trial Judge may be an exercise ofdiscretion, the principle of appellate courts not interfering with that decision even ifthey would have reached a different decision is not necessarily applicable in thecontext of a stay, given the fundamental values at stake.40[55] As a result, I conclude that the second ground constitutes a question of law.This ground addresses a potential error of an oversight by Judge Mill of relevantmatters/consideration of irrelevant matters under category (b) of Brown v R. There isalso no alternative remedy. Both of these factors point towards granting leave toappeal under R v Leonard.[56] Therefore, leave to appeal under this ground should be granted.40 Wilson v R, above n 28, at [27]-[29].Conclusion[57] Because both grounds of the applicant's appeal are questions of law for thepurposes of s 296, and because the factors in R v Leonard point in favour of grantingleave, leave to appeal should be granted for both grounds of the applicant's appeal.Churchman JSolicitors:Crown Solicitor, Wellington for Crowncc: W J BurrowsAppendix10 March 2017 Judge Davidson made a restraining order against Mr Burrowsin respect of A.13 March 2017 Police file charges against Mr Burrows and he appears beforethe Court for his first appearance. He is granted bail.27 March 2017 Mr Burrows is granted bail to 31 March 2017 and the Court isadvised he is seeking a bail variation. Judge Barry ordered as 38 screening report on 31 March 2017. Mr Burrows appliedfor, and received, a bail variation regarding travel restrictionsagainst Police opposition.5 May 2017 Dr Barry-Walsh completed a s 38 report, as ordered by JudgeBarry. The report concluded Mr Burrows was fit to stand trial.22 May 2017 Mr Burrows appeared before the Court. He sought further timeto consider this position and he unsuccessfully sought a furtherbail variation, orally, to enable him to allow unrestricted travelto Wellington.29 May 2017 Mr Burrows' attendance was excused as he was evicted fromthe Court by security staff. Not guilty pleas were entered by hiscounsel Ms Caris, and a case review hearing scheduled for27 July 2017.6 July 2017 Mr Burrows filed a formal written application to vary his bailto be heard on 10 July 2017.10 July 2017 No appearance by Mr Burrows or Ms Caris. Bailed to 27 July2017.17 July 2017 Bail variation was declined by Judge Mill. The hearing hadbeen brought forward at counsel's request.27 July 2017 Mr Burrows' attendance had been excused. A possibledeterioration of his mental health was raised by his thencounsel, and the Court mental health liaison officer.Judge Sainsbury ordered an updated s 38 report to considerMr Burrows' fitness to plead.21 September 2017 Dr Barry-Walsh provided an updated s 38 report, reaching thesame conclusion that Mr Burrows was fit to stand trial.26 September 2017 The case was adjourned to allow Mr Burrows' then counsel toconsider their position in light of the recent s 38 report.19 October 2017 The case was further adjourned to 26 October 2017.26 October 2017 Judge Mill gave a decision that s 9 of the CP(MIP) Act had beentriggered by the ordering of the report by Judge Sainsbury on27 July 2017. Bail was also varied regarding travel restrictions.23 November 2017 Judge Hobbs heard Mr Burrows' application for a s 92 CriminalProcedure Act 2011 oral evidence order for the s 9 hearing.Judge Hobbs reserved his decision. Mr Burrows was nowrepresenting himself.7 December 2017 Judge Hobbs declined the s 92 oral evidence application.8 December 2017 Mr Burrows remanded on bail to 1 February 2018 for half-days 9 hearing.20 December 2017 Judge Mill reserved judgment refusing Mr Burrows'application to obtain a copy of the complainant's Victim ImpactStatement.1 February 2018 Hearing scheduled for a s 9 CP(MIP) Act hearing. The hearingwas adjourned part-heard to 13 March 2018.13 March 2018 The s 9 hearing was further adjourned to await the outcome ofMr Burrows' appeals against the decisions of Judge Hobbs andJudge Mill. New date scheduled; 24 April 2018.19 April 2018 Judicial review hearing set for 24 April 2018 therefore thepresent matter needed to be rescheduled. Adjournment byconsent directed to 2 May 2018.2 May 2018 The s 9 hearing was further adjourned awaiting appealoutcomes.9 May 2018 The judicial review applications in respect of Judge Hobbs andJudge Mills was heard by Ellis J.13 June 2018 The s 9 hearing was further adjourned awaiting appealoutcomes.29 June 2018 Further adjourned administratively.4 July 2018 Justice Ellis delivered judgment, dismissing the judicial reviewapplications in respect of the decisions of both Judge Mills andJudge Hobbs.5 September 2018 The s 9 hearing resumed and it was adjourned to the followingday as there was insufficient time. Bail was also varied againstPolice opposition. An application was made by Mr Burrowsfor dismissal of the charges pursuant to s 147 of the CriminalProcedure Act. This application remains unheard.6 September 2018 The s 9 hearing continued.1 October 2018 The matter was called to confirm the parties had received thenotes of evidence and Judge Butler requested writtensubmissions about "accosted" and "sending emails" to be filedby 14 October 2018.12 October 2018 Mr Burrows sought an extension of time for filing submissions.An extension was granted and submissions by Mr Burrowswere stipulated to be filed by 2 November 2018. That date wasagain extended to 5 November 2018 to recognise a publicholiday in the calculation of ten working days.17 October 2018 Submissions filed by the Police.18 October 2018 Mr Burrows' appeal against the decision of Judge Davidsonordering a restraining order was heard.24 October 2018 Justice Churchman delivered judgment, dismissing the appeal.6 November 2018 Submissions were filed by Mr Burrows.12 February 2019 Judge Butler delivered judgment, satisfied that the s 9involvement inquiry was made out. He ordered a further s 38report from a second health assessor for the purposes of the s 14fitness inquiry.13 March 2019 Mr Burrows filed an appeal against Judge Butler's decision.29 May 2019 Justice Churchman heard and dismissed the appeal.16 July 2019 Bail to continue until 26 September 2019 when the s 14CP(MIP) Act hearing is scheduled to occur. One day isallocated. In-chambers discussion occurred beforeJudge Tuohy. His Honour re-directed the order of Judge Butlerfor a further s 38 report from a second health assessor.26 September 2019 The matter was called, but neither Mr Burrows nor the Courthad been provided with a copy of the s 38 report.23 October 2019 Matter called so parties could discuss the nominal date offeredfor the s 14 CP(MIP) Act hearing. Date of 20 February 2020proposed suited the Court and the prosecution but notMr Burrows who advised he would be out of the country duringthat time. The likely date is in March 2020.1 November 2019 Mr Burrows files an application for a stay.8 November 2019 The Police advised their opposition to the stay application and,due to leave, would only be able to prepare submissions from18 November.27 November 2019 Mr Burrows' application for stay heard and Judge Mill reservedhis decision.