B v Police HC Auckland CRI 2006-404-179
[2006] NZHC 1457
•23 November 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-404-000179
B
Appellant
v
POLICE
Respondent
Hearing: 23 November 2006 (In Chambers) Appearances: Appellant in Person (By Telephone)
K Catto for Respondent
Judgment: 23 November 2006
JUDGMENT OF FOGARTY J
[1] This is an appeal against a decision of two Justices of the Peace sitting at the
Manukau District Court on 18 April where the Court fined Mr B , the appellant,
$200 (including $30 costs).
[2] The charge sheet on the file alleges an infringement on 7 March 2005 at
Otahuhu:
… that the defendant drove a motor vehicle on a road at a speed exceeding the relevant speed limit of 50 kilometres per hour.
B V POLICE HC AK CRI 2006-404-000179 23 November 2006
[3] The summary of facts says:
At about 21:05hrs on Monday the 07th of March 2005 the DEFENDANT: BRUNS was the driver of a Motor Vehicle, Registration Number: TY3771 which was checked by approved vehicle surveillance equipment (Radar) travelling at 72km/hr on Great South Road, Otahuhu
The Infringement fee for this speed is $170.00
[4] The transcript of the hearing on 18 April 2006 has the Court saying:
Well Mr B this occurred on the Pakuranga Road, 82 kilometres an hour checked by radar in a 60 k area, so you are charged with exceeding 60 kilometres an hour, so you are 22 kilometres over.
[5] That comment, obviously, is in contradiction to the charge which was of exceeding 50 kilometre per hour, not exceeding 60 kilometres per hour, and on the summary of facts it says that the offence took place on Great South Road, Otahuhu.
[6] While I was searching for a word to describe the situation Mr B described it as a “mess”. I agree.
[7] The appropriate solution for this minor conviction, in my view, is to allow the appeal and set the conviction aside. I do note that there is room to have some doubt about this Court’s statutory power to do that. It is also complicated by the fact that the Justices of the Peace had, in the same hearing, vacated an earlier not guilty plea and entered a plea of guilty.
[8] There is, however, a further confusion on the facts as Mr B does not think he was in Court at the time.
[9] I am satisfied that on the matters set out in this judgment there is a considerable risk of a miscarriage of justice if this conviction stands. There is, of course, a power to send the matter back to the District Court. But, that would impose on Mr B further disruption to his private life on what appears to be a procedural muck up and I do not think that the charge warrants continued interference with Mr B ’ private life.
[10] Counsel, Ms Catto, has quite properly not opposed the allowing of this appeal. She has drawn to my attention a decision of the Court of Appeal in Davies v Ministry of Transport (1989) 5 CRNZ 371, which might, were the file in order, query the foundation of the appeal jurisdiction. However, that decision was an appeal against an automated system of dealing with minor traffic offences. In this case there was a hearing, according to the file, possibly anyway, by the Justices of the Peace, although it is possible that the transcript is muddled and is not referring to this particular charge.
[11] In my view this Court has an inherent jurisdiction to avoid a delay to what appears to be miscarriages of justice if the matter is allowed to continue and relying on that authority this appeal is allowed in respect of the charge which has the Manukau District Court numbers of CRI 5-092-5888 and CRN 5092117297.
[12] Having spoken to counsel I am satisfied that we have identified the correct charge.
[13] Accordingly, the appeal is allowed and the conviction entered of a fine of
$170 and $30 Court costs is set aside.
[14] The appeal is allowed and the fine imposed is be set aside.
Fogarty J
Solicitors:
Meredith Connell, Auckland, for Crown (Respondent)
cc: D D B , 5 Robyn Place, Mangere 1701
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