B v Police HC Auckland CRI 2007-404-49

[2008] NZHC 290

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-49

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 March 2008

Appearances: Nigel Cooke for Appellant

Emma Finlayson-Davis for Respondent

Judgment:      10 March 2008

JUDGMENT OF HARRISON J

SOLICITORS

Nigel Cooke (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

B V POLICE HC AK CRI 2007-404-49  10 March 2008

[1]      Mr B   appeals against his conviction in the District Court on

14 December  2006  following  a  summary  trial  on  one  charge  of  behaving  in  a disorderly manner in a public place: s 4(1)(a) Summary Offences Act.  His notice of appeal was uninformative but his counsel, Mr Nigel Cooke, has filed  a focused synopsis of submissions.   He has identified the primary ground of Mr B  ’s appeal as arising from an error by the trial Judge, Judge Michael Hobbs, in amending a charge of resisting arrest to one of disorderly behaviour without satisfying his statutory  obligation  to  take  a  plea  from  Mr B    on  the  new  charge:  s 43

Summary Proceedings Act 1957.

[2]      Mr B   was originally charged with trespassing, assaulting an officer in the execution of his duty, and resisting arrest as a result of an altercation which occurred at the Browns Bay Police Station on 9 November 2005.  Mr B   went to  the  station  for  the  stated  purpose  of  making  a  complaint.    He  spoke  to  a Ms Suzanne Marsden, a non-sworn police officer.   Ms Marsden advised that she would  not  take  a  statement  unless  Mr B    gave  his  full  names.     This requirement elicited an angry reaction from Mr B  .  Ms Marsden then called for the assistance of a police officer.

[3]      At this point I pause to record Judge Hobbs’ finding that Ms Marsden’s behaviour was unfortunate.  She knew Mr B   and his full names.  She could have recorded them at the start of the statement without further inquiry of him.  Her insistence that Mr B   answer an academic request was provocative.   While there is no excuse for Mr B  ’s subsequent intemperate conduct, Ms Marsden’s unjustifiable behaviour was the trigger.

[4]      A sworn police officer arrived.   He warned Mr B   that he would be forcibly removed if he did not leave the station.  Mr B   ignored this direction, expressing himself in immoderate and disrespectful language.   The police officer was then good for his word.  He physically evicted Mr B   from the station.  A further  exchange  then  followed.    The  Judge  noted  that  the  denouement  was Mr B  ’s shoulder charge on the officer, resulting in his arrest.

[5]      Judge Hobbs considered the evidence very carefully.   He was not satisfied that the charge of trespass was made out.   Also he observed that the decision to charge Mr B   with assault and resisting arrest was an overreaction.   After properly  concluding  that  Mr B  ’s  behaviour  was  inexcusable  and  that  he brought events leading to his eviction upon himself, the Judge decided to impose a criminal response which he considered was more suitable.  He dismissed the charges of trespass and resisting arrest and substituted the charge of assault with one of disorderly behaviour.

[6]      The Judge carefully recited that he was exercising his powers under s 43.  I have  no  doubt  that  his  decision  to  substitute  a  lesser  charge  was  generous  to Mr B  , and designed to provide a more proportionate result than a conviction for assault.  But in doing so the Judge omitted to discharge his statutory obligation to put Mr B   to a plea on the new charge before proceeding to conviction.  The relevant provisions are mandatory: s 43(3)(a) and (c).

[7]      The  absolute  nature  of  this  obligation  was  expressed  in  these  terms  by

Cooke J in Ministry of Transport v Maud [1975] 1 NZLR 97 at 99:

In the present case, therefore, the Magistrate purported to amend the information at a stage when there was no jurisdiction to do so. If, contrary to that view, he did have jurisdiction, it would have been mandatory under s 43(3)(c),  no  matter  what  the  defendant  or  his  counsel  had  previously intimated,  to  give  the  defendant  an  opportunity  of  pleading  to  the  new charge.

[8]      Ms  Emma  Finlayson-Davis  for  the  Crown  acknowledges  the  Judge’s oversight (or at least that the record omits any reference to taking a new plea). However, in a brief but forceful submission she argues that the Court could properly assume from all the circumstances that Mr B   would have entered a plea of not guilty to the lesser charge if he had been asked to plead.  Ms Finlayson-Davis relies on  dicta  from  Bartlett  v  Ministry  of  Transport  (Wellington  Registry,  M7/86,

25 August 1986) where Heron J in an analogous case observed that it was quite plain the appellant would have entered a plea of not guilty had he been offered the right.

[9]      However, Heron J went on to say this at pp 8-9:

… There can be no doubt that the formality surrounding a plea is of primary importance in the criminal law.  The defendant must plead personally.  The plea cannot be made through counsel or any other person on his behalf except in certain limited circumstances…  I think the provisions of s 43(3) recognise  the  fundamental  importance  of  that  procedure,  and  whilst R v Williams might allow on occasions a vicarious plea of not guilty to be accepted, I do not think the present circumstances are sufficiently similar to allow that to happen here.  The fundamental rule must be that the defendant must plead personally, and he must have every charge read to him in order that that plea can be taken.

[10]     I respectfully agree with Heron J.  He allowed the appeal in Bartlett.  He set aside the conviction, quashed the sentence, and ordered a rehearing on the basis that it was inappropriate to deal with the merits of the appeal.

[11]     I am satisfied that Mr Cooke is correct.   The Judge’s failure to take a plea from Mr B   on the amended charge is fatal to his conviction.  The appeal must be allowed.  This result is the unintended consequence of the Judge’s charity but the mandatory terms of s 43(3) leave me with no alternative.  In the circumstances I do not intend to exercise my powers to remit the proceeding for rehearing in the District Court.   I allow the appeal and quash Mr B  ’s conviction on the charge of

disorderly behaviour.

Rhys Harrison J