Bicknell v Tauranga District Court

[2006] NZCA 246

IN THE COURT OF APPEAL OF NEW ZEALAND

CA234/05

BETWEENPAUL DANIEL BICKNELL

Appellant

ANDTAURANGA DISTRICT COURT

First Respondent

ANDRODNEY ALAN CAVERHILL

Second Respondent

Court:Glazebrook, Robertson and Ellen France JJ

Counsel:Appellant in person

No appearance for First Respondent
R O Gowing for Second Respondent

Judgment:11 September 2006 at 11 am

JUDGMENT OF THE COURT

THE QUESTION IN THE CASE STATED IS ANSWERED IN THE AFFIRMATIVE.  THE JUDGE WAS CORRECT NOT TO ISSUE WARRANTS FOR THE ARREST OF THREE PROSECUTION WITNESSES.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]       This appeal has been heard on the papers under s 392B of the Crimes Act 1961.  The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

[2]       In the course of a private prosecution brought by Paul Bicknell against Rodney Caverhill, Judge Callander stated a case for this Court pursuant to s 380 of the Crimes Act 1961:

Was I right in declining to issue warrants for the arrest of three named witnesses for the prosecution who did not appear at the hearing?

[3]       Mr Bicknell alleged Mr Caverhill stole 14 dairy cattle in August 1994.  Mr Bicknell acted for himself as the prosecutor.

[4]       Mr Caverhill was arraigned on indictment in the District Court at Tauranga on 1 July 2004.  Various preliminary matters were dealt with and a trial was scheduled to commence on 30 March 2005.  At a pre-trial conference on 24 March 2005, counsel confirmed the trial was ready to proceed although Mr Bicknell mentioned his concerns at the likelihood of three witnesses appearing.

[5]       On the morning of the commencement of the trial, Mr Bicknell informed the Court that two witnesses were proving difficult to get hold of.  The trial proceeded.  On the second day of trial, Mr Bicknell wanted to call two witnesses who had not appeared.  He asked the Judge to issue a warrant for their arrest under s 351(1) of the Crimes Act 1961.  This section gives the Court the power to issue a warrant to arrest a witness who has been served with a notice to attend in accordance with s 181 of the Summary Proceedings Act 1957 but who has failed to appear. 

[6]       The Judge refused as he did not have the power to issue the warrant as a Notice of Summons had not been issued in accordance with s 181(3).  There had been service, but it did not comply with the applicable regime.

[7]       Form 45 in Schedule 1 of the Summary Proceedings Regulations 1958 does not include a space for stating the date and time of the trial.  It requires that a constable will inform the witness of the date and time.  The notices served were not defective in terms of the regulation, but there was a lacuna which had to be filled. 

[8]       Mr Bicknell, by memorandum of 24 March 2005, asked the Court staff to serve formal notification of the trial date on the witnesses, but this did not happen.

[9]       On 31 March Mr Bicknell sought an adjournment of the trial so that he could again issue witness summonses.  The Judge refused as the trial was underway.  Mr Bicknell told the Judge he did not wish to carry on with the trial in those circumstances and walked out.  The Judge directed the jury to return a verdict of not guilty.

[10]     Section 181 of the Summary Proceedings Act provides:

181Notice to witnesses to attend at High Court

[(1)     Where –

(a)Any person who gives evidence at the preliminary hearing completes his or her evidence; or

(b)      Any person makes a written statement that is admitted in evidence at the preliminary hearing under section 173A -

the presiding District Court Judge or Justices or Community Magistrate or Community Magistrates or the Registrar may issue to any such person a notice in the prescribed form requiring that person, in the event of the defendant being committed for trial, to attend at the High Court or the District Court, as the case may be, in accordance with the terms of the notice to give evidence.]

(2)Every such notice shall have effect as if it were a summons to a witness issued out of the [High Court] [or District Court, as the case may be].

(3)Every such notice shall be served personally on the person to whom it is addressed, and shall be served by an officer of the [District Court] or by any constable.

(4)The service of any such notice may be proved in the [High Court] [or District Court as the case may be], by affidavit made by the person who served the notice showing the fact and the time of service, or by that person on oath at the trial, or by an endorsement on a copy of the notice showing the fact and time of trial of service and signed by the person effecting service.

(Emphasis added)

[11]     The effect of s 181 is unambiguous.  If a person has given evidence at a preliminary hearing (or made a statement that has been admitted at one) the presiding judicial officer, or the Registrar, may issue a notice requiring that person to attend for trial.  Such notice must be served personally by an officer of the court or a constable: s 181(3).  Proof of service must be in an affidavit sworn by such a person or by endorsement on a copy of the notice: s 181(4).

[12]     In this case, Mr Bicknell filed an affidavit stating that notices had been issued by him to each of the witnesses notifying them of the dates of the trial and that follow-up phone calls had been made by him to remind the witnesses of the dates.  The difficulty is that notices giving the dates of the trial were not served by an officer of the court or a constable as required by s 181(3) and the affidavit was not sworn by a person competent to serve the notice.

[13]     There was, therefore, no evidence available to Judge Callendar of service in accordance with the statutory scheme, or proof from a person who could provide it.  It was right that Judge Callander strictly construed the requirements of s 181.  The power to issue a warrant of arrest is a considerable power and must only be exercised in accordance with the empowering statute(s).

[14]     The Judge was right in those circumstances in declining to issue warrants for arrest of the witnesses.  The necessary prerequisites had not been established.

[15]     The case stated relates solely to whether or not the District Court Judge was correct not to issue warrants.  It does not cover a more far-reaching inquiry into other courses of action which might have been adopted including the issuing of fresh witness summonses, exercising powers under s 368(2) of the Crimes Act 1961, or otherwise.  The case is not before this Court by way of general appeal.  We note that a prosecutor does not have a general right to appeal against an acquittal in the same way that an accused has a right to appeal against conviction: Crimes Act 1961, s 334.  The jurisdiction of this Court is, therefore, restricted to answering the question of law which has been raised.

[16]     The question in the case stated is answered in the affirmative.  The Judge was correct not to issue warrants for the arrest of three prosecution witnesses.

Solicitors:
Gowing & Co, Whakatane, for Second Respondent