B v Police HC Auckland CRI 2006-404-429

[2007] NZHC 375

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-000429

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 April 2007

Appearances: No appearance by Appellant

L Hamilton and S Mount for Respondent

Judgment:      26 April 2007

ORAL JUDGMENT OF ASHER J

Solicitors:

DD B  , 5 Robyn Place Mangere Auckland

Meredith Connell, PO Box 2213 Auckland

B V NZ POLICE HC AK CRI 2006-404-000429  26 April 2007

[1]      This is an appeal by Mr B   against his conviction by Justices of the Peace in the District Court on a charge of exceeding a 50 kms per hour speed limit in breach of s 40 of the Land Transport Act 1998.  It is alleged that Mr B   was in fact travelling at 77 kms an hour.

[2]      Mr B    did  not  appear  at  the  District  Court  hearing  at  which  he  was convicted.  It appears from the transcript of that hearing that the prosecuting sergeant proposed to proceed without him by way of formal proof.   The Court, however, stated  that  it  would  proceed  under  what  was  then  s 78B(5)  of  the  Summary Proceedings Act 1957.  The relevant part of the District Court decision reads:

[7]       THE  COURT:  No.  You  actually  do  it  under  s 78B(5)  of  the Summary Proceedings Act and just ask for the original fee to be applied, plus court costs.

[8]       SERGEANT REID: I now do that Sir.

[9]       THE COURT: All right thank you.  So we order that the original fee be paid of $230.00, Summary Proceedings Act, plus court costs $30.00. Thank you.

[3]      Mr B   lodged a notice of appeal against his conviction and has filed a document referred to as “Affidavit (Number One) of David Dawson B   in support of notice of appeal and for reading in Case Number CRI 2006-404-000179”.   The affidavit does not focus on the alleged speeding offence or the terms of the Justices of the Peace decision.  Rather, it makes a number of allegations and requests, which seem to be related to past events and grievances that he has with the Police and the Courts.

[4]      Just  as  Mr B    did  not  attend  the  District  Court  hearing,  he  has  not attended today’s hearing.  I have had the Registrar telephone him but his advice was that he would not be attending today.  He has offered no reasonable excuse for his non-appearance.

[5]      While Mr B   has not raised the issue, the Justices of the Peace in the District Court may have made an error of law in deciding to proceed with the hearing in Mr B  ’ absence under what was then s 78B(5).

[6]       At the relevant time (prior to amendments which came into force in October

2006), s 78B provided as follows:

78BPower to correct irregularities in proceedings for infringement offences

(1)      This section shall apply to a defendant who,—

(a)On the filing of a copy of a reminder notice pursuant to section 21 of this Act, is deemed to have been ordered to pay a fine and costs; or

(b)On the hearing conducted following the filing of a notice of hearing pursuant to section 21 of this Act, is ordered to pay a fine or costs, or both.

(2)Where a District Court Judge [or Registrar], on the application of a defendant to whom this section applies, is satisfied, whether on the basis of a statutory declaration or evidence given before the Judge, that—

(a)The defendant did not in fact receive the reminder notice, or a copy of the notice of hearing, required to have been served on the defendant pursuant to section 21 of this Act; or

(b)Some other irregularity occurred in the procedures leading up to the order for the fine or costs, or both,—

the Judge [or, subject to subsection (3) of this section, the

Registrar,] may do one or more of the following:

(c)      Set aside or modify the order:

(d)Grant a hearing or rehearing of the matter and proceed with the hearing or rehearing immediately or set it down for a later date:

(e)Authorise or require another copy of the reminder notice or notice of hearing to be served on the defendant, and for that purpose require the defendant to specify an address at which personal service, service by post, or service by either method may be effected:

(f)       Make any other order as to costs or otherwise that the Judge

[or Registrar] considers appropriate in the circumstances.

(3)Where  a  Registrar  exercises  power  under  subsection  (2)  of  this section, the Registrar shall not have authority to set aside or modify the order under subsection (2)(c) of this section.

(4)Where  a  Registrar  exercises  a  power  under  paragraph  (d)  or paragraph (e) of subsection (2) of this section, the order made or deemed to have been made against the defendant shall cease to have effect.]

(5)Where a defendant granted a rehearing pursuant to this section does not appear at the rehearing, the Court may, if it thinks fit, without rehearing the matter, direct that the original order be restored.

[7]      It is pointed out by Ms Hamilton for the Crown that s 78B relates to the correction of irregularities in proceedings for infringement notices.   Section 78B applies to defendants who have been ordered or deemed to have been ordered to pay a fine or costs pursuant to s 21 of the Summary Proceedings Act after a hearing in the District Court.   Section 78B applies to District Court hearings that have commenced following either the filing of a reminder notice or the filing of a notice of hearing: s 78B(1)(a) and (b).  Where an order has been made (either deemed or following  a  hearing),  s 78B(2)  allows  the  Court  to  grant  a  rehearing  in  certain specified situations.  If a defendant has been granted a rehearing but fails to appear at that rehearing, s 78B(5) allows the Court to direct the original order to be restored.

[8]      It is suggested by the New Zealand Police, and I accept, that the Justices of the Peace had no jurisdiction to make any order under s 78B(5).  The proceedings had not been commence by filing a reminder notice or a notice of hearing (Mr B   had made a written request for a defended hearing).  Also no order to pay a fine or costs pursuant to s 21 had been previously made and no rehearing had been granted pursuant to s 78B(2).  Thus s 78B(2) does not apply in this case.

[9]      The appropriate course would have been for the Justices of the Peace to have permitted the prosecuting sergeant to formally prove the offence, as he had originally proposed.   Section 61(b)(ii) provides that where a defendant does not appear in circumstances  such  as  these  a  Court  may  proceed  with  the  hearing  on  such conditions that it thinks fit.  At such a hearing the prosecution can adduce sufficient evidence to prove the case.  It seems that the Police were in a position to do that in this  case,  but  that  the  Justices  of  the  Peace  erroneously  elected  to  enter  the conviction under s 78B(5).

[10]     I am therefore satisfied that the conviction was entered on the basis of an error of law.

[11]     What,  then,  should  the  Court  do  in  this  situation,  especially  given  that Mr B   has not appeared to prosecute his appeal?  Usually in circumstances where an appellant fails to attend without an excuse, the Court would consider dismissing the appeal for non-prosecution under s 133 of the Summary Proceedings Act 1957. But the appropriate course in the circumstances is to remit the charges back to the District Court under s 131 of the Summary Proceedings Act 1957 for rehearing. Mr B   will be advised in due course of the rehearing date.   Mr B   should understand that if he does not appear the Police will be seeking to prove their case by calling the relevant evidence in any event.

Result

[12]     The appeal is allowed.  The matter is referred to back to the District Court for a rehearing.

………………………….

Asher J