Ace v Police

[2018] NZHC 1729

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-20

[2018] NZHC 1729

GUY RAYMOND ACE

Appellant

v

NZ POLICE

Respondent

Hearing:	12 July 2018
Appearances	G Ace the Appellant in person D McWilliam for the Crown
Judgment:	12 July 2018

ORAL JUDGMENT OF POWELL J

Solicitors:

R G Douch, Crown Solicitor, Hamilton

ACE v NZ POLICE [2018] NZHC 1729 [12 July 2018]

[1]    The appellant, Mr Ace, brings this appeal against a decision of his Honour Judge Cocurullo from the District Court at Thames. Judge Cocurullo’s decision, dated 9 April 2018,  dismissed  an  appeal  from  a  decision  by  Community  Magistrate  K Wilson who had on 6 April 2017 upheld an infringement notice against Mr Ace that on 20 April 2016 Mr Ace drove a motor vehicle at a speed exceeding 50 km / hour being the applicable speed limit. Community Magistrate Wilson fined Mr Ace $230 and imposed court costs of $30 against Mr Ace.

The Appeal

[2]    Although Mr Ace has filed a notice of general appeal against Judge Cocurullo’s decision it is in fact a second appeal given Judge Cocurullo’s decision was the first appeal against Community Magistrate Wilson’s decision.

[3]    Appeals to a second appeal court are governed by s 223 of the Criminal Procedure Act 2011 which means that such appeals are with the leave of the second appeal court and leave cannot be given unless that second appeal court is satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may occur unless the appeal is heard.

What Happened

[4]    In bringing the appeal it was apparent that Mr Ace was primarily concerned with an earlier decision of a Community Magistrate with regard to the infringement notice, that of Community Magistrate Mascelle in 2016. This had in fact been set aside by his Honour Judge Bidois in the District Court on 8 November 2016 and Judge Bidois had ordered a new trial take place in front of a new Community Magistrate. The hearing before Community Magistrate Wilson was accordingly the new trial directed by Judge Bidois.

[5]    The hearing before Community Magistrate Wilson commenced with a summary provided by Community Magistrate Wilson which concluded in Community Magistrate Wilson asking Mr Ace if he was maintaining his previous not guilty plea, to which Mr Ace confirmed that he was. Mr Ace then made an application under the Bill of Rights Act claiming that the new trial before Community Magistrate Wilson

amounted to some form of “double jeopardy” against him. Understandably Community Magistrate Wilson was not interested in that argument and pointed out quite reasonably that double jeopardy did not apply, given the decision of Judge Bidois quashing the earlier finding of Community Magistrate Mascelle and directing the new trial.

[6]    At that point however the proceedings in front of Community Magistrate Wilson  got  slightly  confused.  Having  been   rebuffed   by   Community Magistrate Wilson on the double jeopardy argument, Mr Ace indicated that he intended to appeal to the High Court on the issue. This was taken by Community Magistrate Wilson as an indication that Mr Ace did not want to defend the infringement notice at the hearing before her, to which Mr Ace apparently concurred. At that point Community Magistrate Wilson advised Mr Ace in the following terms:

Right. Mr Ace, you did not wish to proceed today and you’ve stated the Bill of Rights Act, section 26, Part 2, subsection (2). You are not wishing to defend this charge today so the infringement has been upheld. You have been fined

$230 with Court costs of $30. Thank you.

Discussion

[7]    It is apparent from the transcript that Community Magistrate Wilson did not proceed to hear any evidence or otherwise satisfy herself about the proof of the infringement notice. Nor did she in any way confirm that Mr Ace had in fact changed his guilty plea from not guilty to guilty.

[8]    This is significant in the context of this case. In particular s 21 of the Summary Proceedings Act 1957 deals with the procedure for infringement offences and provides that the Criminal Procedure Act 2011 applies. As Mr McWilliam acknowledges on behalf of the Police this morning, a not guilty plea by Mr Ace meant that the trial before Community Magistrate Wilson was a Category 1 Judge Alone Trial in terms of the Criminal Procedure Act 2011.

[9]    As a result, in the absence of a change of plea by Mr Ace the infringement offence still needed to be proved before Community Magistrate Wilson and no such proof was provided. Conversely, even if as a result of her discussion with Mr Ace, Community Magistrate Wilson was under the impression that Mr Ace had changed his

plea that would have required confirmation pursuant to s 42 of the Criminal Procedure Act 2011 in order for it to have been recognised by Community Magistrate Wilson. Accordingly in the absence of any proof to support the infringement notice I am satisfied that Community Magistrate Wilson could not have confirmed the infringement offence nor the fine and court costs.

[10]   This issue was not dealt with by Judge Cocurullo who was focused on the Bill of Rights  Act  argument  as  well  as  the  earlier   hearings   before   Community Magistrate Mascelle and Judge Bidois.

Decision

[11]   In the circumstances I am satisfied that the lack of proof having been tendered in the District Court in front of Community Magistrate Wilson is a fundamental barrier to the Police in this case. In the circumstances I am therefore satisfied that there has in fact been a miscarriage of justice. As a result leave for the second appeal must be granted. The appeal is allowed and the infringement notice, fine and court costs are quashed.

[12]   Given that this matter has now been dragging out well over two years and considerable judicial and other resources have been devoted to it, it would not be appropriate to order a further re-trial of this matter.

Powell J