C v Police HC Auckland CRI 2008-404-114

[2008] NZHC 867

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-00114

BETWEEN  C

Appellant

ANDPOLICE Respondent

Hearing:         10 June 2008

Appearances: No appearance by Appellant

M Wright for Respondent

Judgment:      10 June 2008

JUDGMENT OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.

Copy to:

Wayne C  , 8A Modena Crescent, Glendowie, Auckland

C V POLICE HC AK CRI 2008-404-00114  10 June 2008

[1]      The appellant was convicted in his absence by Justices of the Peace sitting in the District Court at Manukau of the offence of operating a vehicle carelessly.

[2]      Upon his conviction he was fined $400 and ordered to pay Court Costs of

$130 together with reparation in the sum of $180 to cover medical costs of the driver of the car which, according to the prosecution, he drove into in the course of his careless driving.

[3]      In circumstances he addressed in his notice of appeal, the appellant was not present when the matter was first called in the District Court and remanded to what was essentially a formal proof date.   The Justices accepted evidence given on affidavit, and as I have said, the appellant was convicted in his absence.

[4]      The appellant was advised to today’s date for the hearing of the appeal, but he has not appeared.  In the circumstances Mr Wright has sought that the appeal be dismissed for want of prosecution.

[5]      There is no evidence before the Court of the matters which are asserted in the Notice of Appeal.  Had Mr C   appeared, one option would have been for him to give evidence of those matters and had that been done and the Court been satisfied after whatever cross-examination might have taken place that the matters set out in the Notice of Appeal had been proven, I expect that the Court would have set aside the conviction and referred the matter back to the District Court for further proceedings.  However, that course is not appropriate given Mr C  ’s failure to appear in this Court today.

[6]      As a consequence the respondent’s application that the appeal be dismissed for want of prosecution is granted.