Burchell v North Shore District Court
[2014] NZHC 2099
•2 September 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-2773 [2014] NZHC 2099
BETWEEN LLEWELLYN WILLIAM BURCHELL
Applicant
AND
NORTH SHORE DISTRICT COURT First Respondent
JUDGE SINCLAIR Second Respondent
NEW ZEALAND POLICE Third Respondent
Hearing: 1 September 2014 Counsel:
Appearance:
No appearance for first and second respondents
M Coleman and ZR Hamill for third respondentLW Burchell, applicant, in person
Judgment:
2 September 2014
JUDGMENT OF FAIRE J
This judgment was delivered by me on 2 September 2014 at 3pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
Crown Law Office, Wellington
And to: LW Burchell, Auckland
Burchell v North Shore District Court [2014] NZHC 2099 [2 September 2014]
The application
[1] The applicant applies to judicially review:
(a) The decision of Judge Sinclair given on 13 December 2012 following a hearing on 28 November 2012 in the North Shore District Court pursuant to which the applicant was convicted on one charge of common assault pursuant to s 196 of the Crimes Act 1961; and
(b)The decision of Judge Sinclair given on 8 March 2013 in the North Shore District Court pursuant to which the applicant was sentenced to two months imprisonment.
Procedural background to the application
[2] The applicant’s statement of claim is prolix. It has been prepared by the applicant himself. It mixes relief which has nothing to do with judicial review with the matters raised in support of the judicial review application.
[3] The file has been case managed by Cooper J. He has issued a number of minutes.
[4] In his minute of 13 February 2014 his Honour set out the scope and matters to be covered by the judicial review application. For completeness sake I set out the relevant parts of paragraphs 9 and 10 of his Honour’s minute:
[9] I note that pursuant to an order made by another Judge, an appeal against Mr Burchell’s conviction and sentence has been delayed pending the outcome of this application for judicial review. I accept the submission that the review should be dealt with promptly in the circumstances, and because of the state of the pleading it needs to be considered separately from the matters that are not properly pleaded.
[10] Consequently, I direct that:
(a) The judicial review application be heard separately from any remaining civil claims that the applicant may wish to pursue.
(b) The issues to be dealt with at the hearing of the judicial review are the lawfulness of the District Court’s decisions to convict the applicant and impose a term of imprisonment on
him. The grounds of challenge are those that have been set out in paragraphs (a)-(e) of [4] above.
[5] Because the minute refers to the grounds recorded in paragraph 4, I now set out the relevant grounds that are recorded in paragraph 4 of his Honour’s minute as follows:
(a) The refusal to delay the hearing of charges against the applicant to enable him to better prepare for the hearing (paragraphs 5 and 6 of the amended statement of claim).
(b) The refusal to appoint a lawyer to assist the applicant (paragraphs 7 and 10).
(c) The refusal to allow the applicant to call witnesses (paragraph 13.1). (d) The refusal, having amended the charge against the applicant, to
allow the applicant to plead to that amended charge (paragraph 14).
(e) Sentencing the applicant to a term of imprisonment in circumstances where he says he had not received legal assistance (paragraph 33).
[6] I was advised that Mr Burchell has a current outstanding appeal in respect of both his conviction and sentence. The appeal has been allocated a Criminal List Callover for 9am on 26 September 2014.
[7] The application was set down for hearing before me on 27 August 2014. Mr Burchell complained that the order made by Cooper J requiring service of the respondent’s submissions on him by 21 August 2014 had not been complied with. I am satisfied that service had not been effected by the time that was ordered to be made.
[8] Cooper J had made the order for service of submissions in a minute dated
8 May 2014. The relevant parts are as follows:
[5] …
(d) The respondent’s submissions are to be filed and served on
or before 21 August.
[6] Mr Burchell has confirmed that for the purpose of service of documents on him the address used should be PO Box 34-430, Birkenhead, Auckland. Documents required to be served on him may be left at that address. I require proof of service by that means to be so filed in respect of every document so served.
[9] Because of the issue raised by Mr Burchell, I inquired as to his readiness to respond and advance his application for judicial review if I adjourned the matter for hearing to the following Monday, that is 1 September 2014. He confirmed that he would be available. Counsel for the third respondent confirmed their availability as well. I issued a minute recording the position and in particular recording the issues for determination in this judicial review, which I have already set out. That minute was handed to Mr Burchell and counsel in the courtroom on 27 August 2014.
Background
[10] The facts resulting in the charge which is the subject of this proceeding need to be considered against a wider background context.
[11] On 16 March 2011 Sergeant Cunningham, who at the time was the officer in charge of the Harbour Combined Investigation Unit based at the North Shore Policing Centre, visited the home address of the applicant with another constable. The purpose of the visit was to arrest Mr Burchell, who was the subject of a warrant to arrest which had been issued in the North Shore District Court the previous day. Sergeant Cunningham says that in the process of executing the warrant, Mr Burchell attempted to assault and resist him. That resulted with Mr Burchell being charged with two offences: assaulting police and resisting police.
[12] On 28 March 2011 Sergeant Cunningham returned to Mr Burchell’s home address at 57 Sapphire Place, Bayview with Detective McIvor. The purpose of that visit was to deliver documents to Mr Burchell to comply with disclosure requirements. The incident which is the subject of the charge at the centre of this proceeding was then alleged to have taken place. That resulted in Mr Burchell being charged with assaulting police.
[13] The charges arising out of the 16 March 2011 incident and the 28 March 2011 incident were allocated a not guilty fixture in the North Shore District Court for
23 November 2011. Mr Burchell submitted that the two events should be separated. In respect of the event alleged to have occurred on 28 March 2011, Mr Burchell elected that to be heard by a jury. The two charges relating to the 16 March 2011 incident were then heard.
[14] A two-day hearing occurred on 23 and 24 November 2011. That was adjourned part-heard. It continued between 21 and 25 May 2012 in front of Judge Field. That resulted in the applicant being convicted and sentenced on both charges.
[15] The applicant has filed an appeal against his conviction and sentence on those charges. This appeal is also listed for a Criminal List Callover for 9am on
26 September 2014.
[16] The matter which is the subject of this proceeding was the subject of an application in the Auckland District Court. The presiding judge allowed an application to rescind the election to have the matter heard in front of a jury. As a result, the matter was returned to the North Shore District Court. A not guilty fixture was set for 28 November 2012.
[17] The applicant applied by letter dated 13 November 2012 for an adjournment of the defended hearing to take place on 28 November 2012. In his written letter to the court he asked that the case be postponed until the determination by the High Court of his appeal in respect of the two charges arising out of the 16 March 2011 incident. He submitted that the facts and conditions relating to the event which occurred on 28 March 2011 were closely linked to the facts and other matters that had been determined by Judge Field, and were the subject of the appeal.
[18] The application for an adjournment was declined.
[19] The notes of evidence on 28 November 2011 contain a lengthy discussion between the court and Mr Burchell about the adjournment request.
[20] This, in summary, is the background against which the five matters which are the subject of the judicial review arise.
The nature and purpose of judicial review
[21] I adopt the observations of French J in Aorangi School Board of Trustees v
Ministry of Education where her Honour said:1
… contrary to popular belief, judicial review is not an appeal. It is not about the Court considering the information afresh and coming to its own views. Judicial review is primarily limited to an examination of the process, and if successful usually results in the decision maker being required to start afresh, as opposed to quashing the decision for all time.
[22] In Akaroa Marine Protection Society Incorporated v Minister of
Conservation the Court stated that:2
… an underlying objective of judicial review is to maintain the rule of law, reflecting judicial commitment to the principles of legality and substantive fairness.
[23] Mr Burchell also wishes to challenge Judge Sinclair’s two decisions. The time and place for that challenge is the hearing of his appeal from those two decisions.
[24] This judgment must consider the five matters raised for the purpose of determining the lawfulness and the fairness of the District Court decisions to convict and impose a term of imprisonment on Mr Burchell.
The refusal, having amended the charge against the applicant, to allow the applicant to plead to that amended charge
[25] The charge originally laid was one of aggravated assault pursuant to s 192 of the Crimes Act 1961. The charge was amended on the application of the police to a charge of common assault pursuant to s 196 of the Crimes Act 1961.
[26] The record shows a lengthy interchange between the applicant and the Judge, which is contained in pages 38 through to 61. This occurred before the hearing of
the case began.
1 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
2 Akaroa Marine Protection Society Incorporated v Minister of Conservation [2012] NZHC 933, [2012] NZAR 655 at [39].
[27] It is common ground that the applicant was not asked to plead to the amended charge.
[28] Section 43 of the Summary Proceedings Act 1957 provides:
43 Amendment of information where defendant appears
(1) Subject to the succeeding provisions of this section, where the defendant appears to answer a charge to which this Part of this Act applies, the Court may amend the information in any way at any time during the hearing.
(2) Without limiting the generality of the powers conferred by subsection (1) of this section, it is hereby declared that those powers shall include power to amend an information by substituting one offence (whether an indictable offence or a summary offence) for another offence (whether an indictable offence or a summary offence), and shall also include power to amend the information to an information to which Part 5 of this Act applies.
(3) Where under subsection (2) of this section any information is amended by substituting one offence for another, then, subject to the provisions of subsection (4) of this section, the following provisions shall apply:
(a) Subject to the provisions of paragraphs (b), (c), and (d) of this subsection, the hearing shall be continued as if the defendant had originally been charged with the substituted offence:
(b) If the substituted offence is one to which section 66 of this Act applies, the defendant shall, before the hearing is continued, be entitled to elect to be tried by a jury for that offence, and the provisions of that section, with the necessary modifications, shall accordingly apply as if for the words “before the charge is gone into” in subsections (1) and (2) of that section there were substituted in each case the words “before the hearing is continued”:
(c) Before the hearing is continued, the substance of the charge as amended shall be stated to the defendant and he shall be asked how he pleads; and, if he pleads guilty, the Court may convict him or deal with him in any other manner authorised by law:
(d) Any evidence already given shall be deemed to have been given in and for the purposes of the hearing of the charge as amended, but either party shall have the right to examine or cross-examine or re-examine any witness whose evidence has already been given in respect of the offence originally charged.
[29] It is clear that the Judge erred in failing to comply with s 43(3)(c). A number of authorities have confirmed that compliance with the section is mandatory.3
Section 204 of the Summary Proceedings Act 1957 is not available to cure the defect.4
Conclusion
[30] The result is that the Judge’s failure to take a plea from Mr Burchell on the amended charge is fatal to his conviction. The application for judicial review must be allowed on this ground.
[31] I invited counsel for the third respondent to advise if there would be any useful purpose in referring the matter back to the District Court for a rehearing. Counsel, understandably, had no instructions but was not able to provide me with a reason to adopt that course. I do not consider there would be any useful purpose in sending the matter back for a rehearing before the District Court. Mr Burchell has served the sentence that was imposed. The whole exercise would be nothing short of a waste of time. I note that a similar conclusion was reached by Harrison J in
Burchell v Police.5
[32] The conclusion that I have reached on this aspect of the judicial review proceeding makes it unnecessary to consider the other matters that were set out in [5] of this judgment.
Orders
[33] Accordingly, I order that Mr Burchell’s conviction on 13 December 2012 and subsequent sentence are set aside.
3 Taia v Police [2012] NZHC 1255 at [14]; Reynolds v Police HC Dunedin AP68/87, 15 July
1988; Tam v Police (1996) NZFLR 252 (HC); Bartlett v Ministry of Transport HC Wellington M7/86, 25 August 1986; Burchell v Police HC Auckland CRI-2007-409-49, 10 March 2008 at [6].
4 R v Police [1997] 14 CRNZ 590 (HC); Tam v Police, above n 3.
5 Burchell v Police, above n 3.
[34] As a consequence of this, Mr Burchell’s appeal is unnecessary. The appeal is
accordingly struck out and attendances in relation to the appeal on 26 September
2014 in relation to this matter are accordingly excused.
Costs
[35] Mr Burchell has been successful. He is a litigant in person and, for that reason, I make allowance for costs.6
JA Faire J
6 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24
NZTC 24,500 at [162]; re Collier (bankrupt) [1996] 2 NZLR 438 (CA).
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