B v Police HC Dunedin Cri-2007-412-15
[2007] NZHC 1792
•6 June 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2007-412-000015
B
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 6 June 2007
Counsel: Appellant In Person
C E R Power for Respondent
Judgment: 6 June 2007
ORAL JUDGMENT OF PANCKHURST J
[1] This purports to be an appeal against a decision of the District Court brought by way of general appeal pursuant to s115 of the Summary Proceedings Act 1957. For reasons which I shall now give I am totally satisfied that there is no right of appeal in this case because the Court does not have jurisdiction to entertain an appeal in the circumstances which arose at the hearing.
[2] Mr B was charged that on 19 May 2006, having been required to leave licensed premises, he refused to do so and therefore committed an offence against the Trespass Act 1980. He pleaded not guilty to that charge. It became the subject
of a prolonged hearing before Judge O’Driscoll. The case was part-heard on
B V NZ POLICE HC DUN CRI-2007-412-000015 6 June 2007
30 October 2006 - 9 January 2007 and the hearing continued on 12 April. Despite the several hours that the hearing had occupied, the case had only reached the point where a second prosecution witness was under cross-examination. The Judge was concerned at the lack of progress.
[3] After the morning adjournment on 12 April he raised with the police prosecutor whether the information should be withdrawn. The prosecutor indicated that he too was concerned at the commitment of resources to what he described as a relatively minor case and for that reason an application to withdraw the information was made.
[4] Judge O’Driscoll said this:
[9] I have taken the view that it is appropriate for the police to have leave to withdraw the charge. I have no doubt Senior Sergeant Armitage has made the application reluctantly. It is a matter which I am also reluctant to allow, but again, taking into account the interests of justice and all the matters that are before me that I have mentioned, my view is that it is appropriate to grant the application.
[10] Leave is granted to withdraw the charge, and the charge is accordingly withdrawn.
[5] A notice of appeal was filed by Mr B dated 9 May 2007. I note that the appeal was expressed to be against the “decision made” by Judge O’Driscoll.
[6] Subsequently on 25 May Mr B filed a memorandum with the Court in which he sought a direction that a full transcript of the two and a half day hearing be provided. Because I was the Judge scheduled to sit today that memorandum was referred to me.
[7] On 28 May I issued a minute. The minute drew attention to s115(1) of the Summary Proceedings Act which defines the right of appeal. I also referred to two reported decisions which had considered whether there was a right of appeal in circumstances such as the present. The minute concluded in this way:
In these circumstances I do not consider it is appropriate to make the direction sought by Mr B . As can be seen from this minute, the first issue in relation to this appeal is whether there is any right of appeal, in relation to
which the transcript of the exchanges leading to withdrawal of the information is relevant and adequate (and already typed back).
The minute, I note, was addressed to Mr B at his street address in Mäori Hill, Dunedin.
[8] When Mr B eventually appeared this morning I raised at the outset of the hearing the issue of jurisdiction. I asked whether he had seen the minute which I issued on 28 May. He told me that he had not.
[9] In anticipation of today’s hearing counsel for the police prepared a written submission which, I had been told by Mr Power, was posted to Mr B ’s address and should have reached his home on Saturday last. Again, following inquiry, Mr B indicated that he had not received that submission. It, too, dwells on the issue of jurisdiction, whether there is any right of appeal against the withdrawal of a summary information. The submission refers to additional cases (not mentioned in my minute) which are authority for the same proposition that there is no right of appeal.
[10] Since Mr B had not had an opportunity to consider either the minute or the written submission and therefore the issue of jurisdiction, I endeavoured to discuss that aspect with him this morning. He was shown s115(1). Mr B has spoken at some length with reference to the question of jurisdiction but nothing he has said has been of any relevance or assistance. That, then, is the background.
[11] Section 115 provides:
(1) Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint, and
(a) Convicts any defendant; or
(b) Makes any order, including –
(i) An order for the payment for costs; or
(ii) An order declining an application for the payment for such costs; or
(iii) An order for the estreat of a bond, -
the person convicted or against whom the order is made may appeal to the High Court.
[12] For about the last 45 years the interpretation of the section has been settled. In Burton v Police [1961] NZLR at 698, Barrowclough CJ held that there was no right of appeal following the withdrawal of an information. That view has been upheld in a number of subsequent cases, for example by the Court of Appeal in Police v S [1977] 1 NZLR 1. All of these decisions are to the effect that where there has not been a determination of an information, there is no basis for an appeal. The reasoning is obvious. If a Judge has not entered into the merits of the case and given a decision on that basis, then there is nothing with which this Court may concern itself.
[13] In accordance with the previous authorities, including authorities of the Court of Appeal which are binding upon me, I find that the purported appeal is without jurisdiction and that there is no cause to inquire further into the background of the
hearing in the District Court.
Solicitors:
Appellant – Mr J A B , 23 Cairnhill Street, Mäori Hill, Dunedin
Wilkinson Adams Lawyers, Dunedin for Respondent
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