Attorney-General v District Court at Auckland HC Auckland CIV 3907/04

[2005] NZHC 1264

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 3907/04

UNDER

IN THE MATTER OF

the Judicature Amendment Act 1972

a decision of the District Court at Auckland

BETWEEN

ATTORNEY-GENERAL OF NEW ZEALAND

Plaintiff

AND

DISTRICT COURT AT AUCKLAND

First Defendant

AND

PETER ARNOLD MAUDE

Second Defendant

Hearing:

2 February 2005

Appearances: A R Burns for Plaintiff

Mr N Percy for Second Defendant Judgment:  22 February 2005

RESERVED JUDGMENT OF PRIESTLEY J

Solicitors:

Crown Solicitor, P O Box 2213, Auckland – facsimile 336 7629 Kevin McDonald, P O Box 331065, Takapuna – facsimile 486 5082

ATTORNEY-GENERAL OF NEW ZEALAND V DISTRICT COURT AT AUCKLAND And Anor HC AK
CIV 3907/04 22 February 2005

The Issue

[1]        The issue raised by this proceeding is whether, in respect of a charge initially laid summarily but where a defendant has elected trial by jury, a prosecutor can seek to substitute, by amendment, a charge which can only proceed summarily.

[2]        The New Zealand Police sought to do this in respect of a charge laid under s 56(2) of the Land Transport Act 1998 in the Auckland District Court. Gittos DCJ, in a reserved judgment dated 20 May 2004 refused the prosecutor’s amendment application on jurisdictional grounds. The plaintiff challenges the correctness of that decision by judicial review.

[3]The District Court (the first defendant) abides by the decision of the Court.

Background

[4]        The second defendant was subjected to breath test procedures under the Land Transport Act 1998 in Orakei during June 2003. It would appear that he submitted to a blood test. His reading was 208 mg/100 ml blood – that is 128 mg above the legal maximum.

[5]        The police believed that the second defendant had been convicted on at least two previous occasions of drink driving offences. Accordingly an information was laid in September 2003 alleging an offence against s 56(2), exposing the second defendant to a possible penalty exceeding 3 months imprisonment. (s 56(4)).

[6]        The charge was thus one in respect of which the second defendant had the right to elect trial by jury, (s 66(1) Summary Proceedings Act 1957). On 1 March 2004, almost five months after the information had been laid, the second defendant exercised that right. He had already appeared twice in the District Court and been remanded without plea.

[7]        The prospect of a jury trial in the context of drink driving offences has some significance. From the stand point of any defendant a jury trial will extend

significantly the time period from the alleged offence to a trial’s outcome. For some defendants this delay may have attractions.

[8]        In a narrower forensic and technical context, more hurdles are laid across the track down which a prosecutor must run. Witnesses must be available for an additional committal hearing. Where prior convictions form part of the alleged offence, the method of proving a conviction by a certificate (s 69AA(3) Summary Proceedings Act 1957) is not available in a jury trial. A prosecutor would have to tie in a prior conviction to an accused as a matter of identity.

[9]        The extent to which these considerations were operating, so far as the second defendant is concerned, has no relevance to this proceeding. They were, however, considerations so far as the police were concerned. Counsel informed me there might be difficulties in establishing before a jury the alleged previous convictions of the second defendant.

[10]      For this reason, when the second defendant further appeared in the Auckland District Court in a pre-depositions call over on 12 March 2004, the police sought leave to amend the information to the lesser s 56(2) charge of driving with excess blood alcohol. That reduction would have presented the second defendant and the District Court with a summary charge in respect of which the second defendant had no right to elect trial by jury. This amendment was opposed by the second defendant on jurisdictional grounds. Gittos DCJ decided that he had no power under the Summary Proceedings Act to make the amendment and dismissed the application.

Discussion

[11]      In the District Court the parties, in large measure, ran their respective cases on the basis that s 43 of the Summary Proceedings Act 1957 applied to the amendment sought. This relevantly provides:

43    Amendment of information where defendant appears

(1)          Subject to the succeeding provisions of this section, where the defendant appears to answer a charge to which this Part of this Act applies,

the Court may amend the information in any way at any time during the hearing.

(2)        Without limiting the generality of the powers conferred by subsection (1) of this section, it is hereby declared that those powers shall include power to amend an information by substituting one offence (whether an indictable offence or a summary offence) for another offence (whether an indictable offence or a summary offence), and shall also include power to amend the information to an information to which Part V of this Act applies.

…

(4)     Where under subsection (2) of this section any information is amended to an information to which Part V of this Act applies, the case shall be dealt with under that Part in all respects as if the defendant had originally been charged under that Part with the indictable offence stated in the amended information.

(5)     The Court may, at the request of the defendant, if it is of opinion that he would be embarrassed in his defence by reason of an amendment made or proposed to be made under this section, adjourn the hearing of the case.

[12]      What was before the District Court was an information which had been laid summarily but in respect of which the second defendant had elected trial by jury. Section 66 is thus relevant:

66 Defendant's right to elect trial by jury where offence punishable by more than 3 months' imprisonment

(1)   Any person charged under this Part of this Act with an offence which is punishable by imprisonment for a term exceeding 3 months shall be entitled, before the charge is gone into but not afterwards, to elect to be tried by a jury. Before the defendant is called upon to make his election under this subsection, the substance of the charge shall be stated to him.

…

(4)     Where a defendant who is charged under this Part of this Act with an indictable offence elects under this section to be tried by a jury, the proceedings shall continue as if he had been charged on an information in form 2 in the Schedule 2 to this Act.

(5)Where a defendant who is charged with a summary offence elects under this section to be tried by a jury, the proceedings shall continue as if the offence were an indictable offence not punishable summarily, and, if he is committed for trial or for sentence, he may be dealt with accordingly.

[13]      Section 43 sits in Part II of the Act which applies when a defendant is proceeded against summarily. Part V of the Act extends to indictable offences.

It is that part which became operative when the second defendant elected trial by jury.

[14]      Section 162 covers the amendment of informations laid indictably and provides:

162 Amendment of information

(1)     Subject to the provisions of subsections (2) and (3) of this section, the Court may amend any information to which this Part of this Act applies in any way at any time during the preliminary hearing.

(2)        No information in form 2 in the Schedule 2 to this Act shall be amended to an information in form 1 in that Schedule.

(3)      The Court may at the request of the defendant, if it is of opinion that he would be embarrassed in his defence by reason of an amendment made or proposed to be made under this section, adjourn the preliminary hearing. Except with the consent of both parties no such adjournment shall be for a longer period than 8 days.

[15]      The judge considered that, once the second defendant exercised his right to elect trial by jury, s 66(4) operated with the effect that the information must be treated as a Form 2 information laid indictably under Part V. Hence the power to amend conferred by s 43 could not be exercised. The power conferred by the Part V provision s 162 was, in view of the judge, limited by subs 2 which prevented a Form 2 information being amended to a Form 1 information. This was what the police sought.

[16]      Focusing on s 162 (1) the judge accepted the police’s submission that the amended application had been made “before the preliminary hearing”. That submission was apparently designed to persuade the judge that s 162 was not yet operative.

[17]       Mr Burns for the plaintiff, as a result of his research into the area, was obliged to modify the police approach. At the outset he referred the Court to Robinson v North Shore District Court [1997] 1 NZLR 64 which is authority for the proposition the words “preliminary hearing”, used in both ss 162 and 152, and also in the heading of Part V of the Act, encompass the entire Part V route from the laying of an information until committal. In the words of Paterson J:

“When the provisions of Part V are considered in context, it is clear in my view, that Part V is a code which deals with the summonsing of, conduct of and the disposition of the preliminary hearing in those cases where the charge is laid indictably. It contemplates the proceeding commences with the information and that the defendant is either then summonsed or brought on a warrant to the Court to answer that information.” ( Ibid 68)

[18]      Thus, argument on appeal focused solely, and in my view correctly, on the issue of whether s 162(2) prevents as a matter of jurisdiction, the District Court from making the amendment sought by the police.

[19]      Mr Percy correctly observed the statutory power the judge had been asked to exercise and which he refused to exercise was that conferred by s 43. Mr Percy was initially of the view that it was questionable whether judicial review could properly be sought when it was now accepted by the plaintiff that the s 43 power was not at issue, the focus instead being on s 162.

[20]      However, as is clear from the judge’s decision, one of the factors that led him to refuse the requested amendment was the clear words of s 162(2). Given the plaintiff’s focus was now on the failure of the judge to exercise the amendment powers contained in s 162, counsel sensibly agreed judicial review could properly attach to the non-exercise of that power in the circumstances of this particular case.

[21]      Section 162(2) has been subjected to High Court scrutiny in the past. In Daemar v Gilliand [1979] 2 NZLR 7 a self-represented prisoner sought judicial review of various decisions made by a Stipendiary Magistrate. Daemar had initiated a number of private prosecutions. On one of these, a theft charge, the defendant elected trial by jury. During the preliminary hearing, before committal, the Magistrate held there had been no proof of the value of the allegedly stolen goods. On his own motion he amended the information by decreasing the value of the goods to less than $5, thus making the offence one that could only be tried summarily. A not guilty plea was entered whereupon the magistrate dismissed the charge.

[22]      McMullin J was clear that this action on the part of the magistrate was prohibited by s 162(2).

In my view, the effect of what the learned Magistrate did in amending the information by reducing the value of the goods from $167.50 to "less than

$5" was to reduce it to an information in Form 1 in the Second Schedule to the Act. That seems to me to have been contrary to the prohibition contained in s 162(2) of the Act. There seems to be no authority on the point although I note that support for this view is given in Police Law in New Zealand (3rd ed, 1967) p 127, where the editor, the late Mr J H Luxford, himself a Magistrate of considerable experience, said that the provisions of s 162 apply where:

(a)The information has been laid on form 2;

(b)The information has been laid on form 1;

and the defendant has, pursuant to s 66, elected trial by jury.

Although it could be said that the Magistrate did not, in making the amendment, expressly alter the offence to one in Form 1, that is "punishable summarily", what he did was to provide effectively that from the moment of amendment, the offence was a summary one to be dealt with under Part II. Section 162(2) seems to prohibit such a step being taken.      (Ibid 19-20)

…

In amending the information to change the character of the hearing from one of a preliminary inquiry into an indictable offence under Part V of the Summary Proceedings Act 1957 (in which no final determination as to the guilt or otherwise of the defendant could be made) to one of a summary offence under Part II (in which a final determination could be made), the Magistrate in my view assumed a jurisdiction and power which he did not have, namely, to amend the information back into the class of a summary offence. Section 162 (2) expressly precluded him from so doing and what happened after that amendment was in fact done without jurisdiction and was therefore a nullity.  (Ibid 22)

[23]      The principles thus enunciated are applicable to the situation before Gittos DCJ. Although the charge against the second defendant was initially laid by way of a Form 1(summary) information, the effect of ss 66(4) and (5) (supra) was to ensure, by virtue of deeming provisions “as if”, that from the point the second defendant elected trial by jury both the future proceeding must be conducted on the basis that he had been charged on a Form 2(indictable) information, and the offence itself was punishable indictably rather than summarily.

[24]      The effect of s 66 is thus to bring the entire process into the ambit of Part V. As such, the powers of amendment conferred by s 162 exclude, as McMullin J observed, a Form 2 information which the second defendant’s information had become, being amended to a Form 1 information.

[25]      In Mr Burns’s submission s 162(2) should not be construed in such a way as to limit the right of an informant to determine how charges should be laid. If the prosecution elected to lay a charge indictably then subs 2 clearly and correctly prevented a court from ordering a summary hearing. But in situations where a charge, originally laid summarily, had triggered an election for trial by jury, the court should retain a discretion to permit an informant to seek an amendment designed to revert the charge to summary jurisdiction.

[26]      Such a discretion, Mr Burns accepted, would need to weigh a defendant’s right to elect trial by jury under s 66 and also the right to the benefit of a jury trial enshrined in s 24 (e) of the New Zealand Bill of Rights Act 1990.

[27]       In Mr Burns’s submission the words in s 162(1) “in any way at any time” were designed to give flexibility to both the court and the prosecutor. Although accepting that subs 2 prohibited an amendment which would transform a Form 2 information to a summary Form 1 information, counsel submitted the prohibition did not extend to a prosecution which commenced life as a Form 1 summary information but which, as here, had incorporated Part V procedures as a result of an election for trial by jury.

[28]      Counsel further submitted that Daemar v Gilliand had been wrongly decided and that the true policy of s 66(4) and 162(2) in combination was to import a procedure rather than to make “substantive alteration” to the form of the information which, he contended, remained at heart a Form 1 information.

[29]      Finally Mr Burns submitted it would be unfair to construe s 162(2) in such a way as to inhibit the prosecution of crime by denying to a prosecutor the right to prosecute a charge summarily which might not be prosecuted successfully on an indictable basis.

[30]      For the second defendant Mr Percy submitted that the relevant statutory provisions were plain. Furthermore the principle enunciated in Daemar v Gilliand as to s 162(2)’s proper interpretation had remained unchallenged for 25 years. The

interests of defendants and their statutory rights should not be read down by courts. In this context s 24(e) of the New Zealand Bill of Rights Act was important.

[31]      Counsel pointed to s 162(3) (supra), clearly designed to assist defendants who might be placed at a tactical advantage by a successful amendment from summary to indictable form. An opportunity for an adjournment of “the preliminary hearing” was available. Being stripped of the right to a jury trial which had been elicited under s 66 could similarly disadvantage a defendant, yet there is no corresponding provision to assist defendants if summary jurisdiction reverted (there of course being no preliminary hearing for a summary trial).

[32]      In Mr Percy’s submission if the police were confronted with difficulties in proving previous convictions for the purposes of ss 56(2) and (4) of the Land Transport Act 1998, those difficulties should be assessed and weighed before an information was laid. Legislative amendment, which might include the removal of the right of a jury trial for that offence, was preferable to the court giving a strained interpretation to clear legislation.

Decision

[33]      The court is not blind to partisan considerations which flow from the fact that offending covered by s 56(4) and indeed other provisions of the Land Transport Act 1998 are indictable offences. The right to elect trial by jury in such cases is clear and can be exercised. In respect of any indictable charge laid summarily, the process of preparing and filing an information, the first call appearance and, if a jury trial is elected, the subsequent stages of the preliminary hearing, will occupy many months. Once the six month anniversary of the alleged offence has passed the option for a prosecutor to withdraw the information and relay a charge which can only proceed summarily is unavailable (s 14 Summary Proceedings Act). This is a factor additional to the other tactical factors to which I have alluded (supra para [8])

[34]      Counsel inform me that it is not an isolated case and that other prosecutions involving elections of jury trials will be affected by the result of this appeal.

[35]      Be that as it may, I consider the policy contained in the relative sections of Part V of the Summary Proceedings Act 1957 is clear. I also consider that Daemar v Gilliand, as it relates to s 162(2), was rightly decided. This judgment is not the place to repeat or expand on various criticisms which have been made of both the Summary Proceedings Act 1957 and the procedural forms it contains ( see R v Hoe [2001] 2 NZLR 633; Simplification of Criminal Procedure Legislation: An Advisory Report to the Ministry of Justice (Law Commission SP7 (2001)). The Act, as it relates to this proceeding, is unambiguous and clear.

[36]      The second defendant was properly charged with an indictable offence laid in summary form. He exercised his right to a jury trial. Part V of the Act lays out specific procedures and processes for indictable offences. The end of the process is a decision by a committal court whether to commit or discharge.

[37]      The indictable offence track can, with qualifying offences, be joined by a defendant charged summarily if the right to elect a jury trial is exercised. Here it was. At that point, in terms of s 66(4), a proceeding “shall continue” as if the charge had been laid on a Form 2 (indictable) information.

[38]      Along the indictable track s 162(2) prohibits an amendment of a Form 2 information to Form 1. The gloss which the plaintiff’s counsel wishes me to give to that provision is to read down a clear prohibition permitting the prohibition to apply to Form 2 informations, but not to Form 1 informations which join the Part V track as a result of an election.

[39]      In my judgment such an interpretation is strained, unjustified, and would run contrary to the clear policy of the Act in its current form.

[40]      I reject, counsel’s argument that s 162(2) fetters in some way the ability of a prosecutor to prosecute crime effectively and to determine how charges should be laid. The argument that a prosecutor should have the luxury of being able to fall back on a summary trial if trial by jury seems too difficult is unattractive. It runs counter to the s 24(e) NZBORA right.

[41]      If, as it is alleged, the second defendant was driving with the high blood alcohol level of 208 mg alcohol per 100 ml of blood and, if he indeed has two or more qualifying convictions, then the public interest clearly demands he be prosecuted and, if found guilty, punished appropriately.

[42]      In the context of the tactical considerations I have mentioned it is not surprising that the second defendant and others in his alleged position might elect trial by jury, extend out the various time periods involved, reach the safety of the six month period and then (as they are constitutionally entitled to do) put the prosecution to the proof in respect of the qualifying offences.

[43]      I have no information about, (nor would it be relevant), the number of prosecutions under ss 56(2) and (4) which may fail for these reasons. If there are loopholes that are being exploited then the answer must lie in legislative amendment either to the time periods involved for laying summary charges in the area, or to the right to elect trial by jury. These are policy matters for Parliament to consider. They are not factors which should persuade me to interpret s 162(2) in a way which ignores the clear wording and policy of the Act.

[44]      For these reasons therefore the plaintiff’s application for judicial review must fail.

Result

[45]      The plaintiff’s application for judicial review challenging the decision of Hobbs DCJ delivered in the Auckland District Court on 20 May 2004 is dismissed.

Costs

[46]      Although this proceeding had its origins in alleged offending it is a civil proceeding. The second defendant has been successful. Costs are ordered in the second defendant’s favour on the 2B scale.

....................................................

Priestley J

Delivered at       am/pm on 22 February 2005.