C v Police HC Dunedin CRI 2007-412-2

[2007] NZHC 230

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2007-412-000002

C

Appellant

v

POLICE

Respondent

Hearing:         30 March 2007

Appearances: R D Checketts and N J Murphy for Appellant

C E R Power for Respondent

Judgment:      30 March 2007

JUDGMENT OF FOGARTY J

[1]      This is an appeal firstly against a refusal to grant an adjournment consequent to which the defendant left the Courtroom and the police case was led and a conviction was entered.   The transcript of what took place is annexed to this judgment.

[2]      There is one deficiency in the transcript.  After the entry:

COUNSEL REQUESTS A MOMENT WITH HIS CLIENT.

Mr Checketts has advised me that he then sought leave to withdraw and then he and his client left the hearing.

C V POLICE  HC DUN CRI 2007-412-000002  30 March 2007

[3]      In  addition  to  the  material  which  is  self-evident  from  the  transcript Mr Checketts advised that as he explained at the outset in the second sentence of the transcript, he was appearing to make an application for an adjournment.  He was not instructed to defend the case.   His client wanted to defend the case himself and I should add that this Court is familiar with the common practice, at least in the South Island, for lay persons to defend traffic matters themselves before Justices of the Peace hearings.

[4]      Mr Checketts, appearing on appeal, argues that the fundamental obligation on the Justices of the Peace was to conduct a fair hearing.  That has to be right.  It is not necessary to  set  out  the  minimum  standards  of criminal  procedure  in  the  New Zealand Bill of Rights Act 1990, nor the common law on the subject.   It is a very simple but essential obligation on any Court to provide a fair hearing.  If the parties do not receive a fair hearing then the consequences following the hearing can and will be set aside on appeal.

[5]      Mr Power sought to file an affidavit, which I have not read, but which he said would prove that Mr C   did not have a sufficient medical condition to justify the application for an adjournment, from which I presume that the affidavit will be to the effect that he had enough hearing to be able to participate in the proceedings.

[6]      There are two problems with seeking leave to file that affidavit.  The first one is that the affidavit is from the Registrar of the Court.  It is not evidence of what the Justices of the Peace knew.  Nor can it be of what their opinion was.  Furthermore, they did not give reasons for their decision.  The second problem is that the police prosecutor gave two reasons against the adjournment, the first being that this was the third fixture, the second being the hearing difficulty.  The prosecutor did not dispute that there was a hearing difficulty but offered the submission that the hearing would be equivalent to a one on one conversation because no more than one person would be talking to him at a time.

[7]      The  question  of  whether  or  not  the  Justices  of  the  Peace  should  have adjourned has to be assessed, on appeal, on the basis of the arguments that were

placed before them at that time, not bolstered by evidence of other persons at the hearing designed to undermine the degree of the hearing difficulty.

[8]      The  first  argument  of  the  police  prosecutor  carried  with  it  an  implicit proposition that somehow the defendant was responsible for the fact that this was the third adjournment application.   He can hardly be responsible for a bereavement in the family which justified the first adjournment.  The second was an adjournment by the Court, not as a result of his application, and the application for the third adjournment  was occasioned by a  medical condition.    The police prosecutor  or counsel prosecuting for the police would simply not put up that argument in front of a District Court Judge or High Court Judge.  I have previously had occasion to note that police prosecutors appearing in front of Justices of the Peace should be very responsible in what they put up for consideration before Justices of the Peace who are not professional Judges.  I am concerned that this was the first argument and a totally inappropriate argument against the adjournment.

[9]      As to the second  argument,  Mr  Checketts,  as a member  of the bar,  had provided the Court a letter from a medical practitioner and a referral appointment  to a specialist and had informed the Court, it not appearing on any of the documents, that his client suffered tinnitus.   There was no challenge to Mr Checketts offering that information to the Court and it was entirely appropriate and is frequently done by barristers appearing before the Court in a situation like this.  The opinion of the police  prosecutor  that  the  hearing  difficulty  could  be  disregarded  is  not  an appropriate submission for the police prosecutor to make in the face of that application.

[10]     Certainly, as I have indicated, from my own long association with the world of deaf and deafness, there is no comparison between speaking to a person with a hearing difficulty one on one in a quiet room, in front of that person, with a low background ambience, on the one hand, and a person endeavouring to follow Court proceedings where albeit there is only one person speaking.   So I have to confess the proposition of the prosecutor appears to be a nonsense to me and that may well be affecting my judgment on the matter.

[11]     I am not satisfied that this was a fair hearing, that this was an appropriate adjournment.  The Courts have regularly insisted that hearings be fair.  It does not matter what the strength of the case is and Mr Power appropriately did not go into that topic.

[12]     For  these  reasons  I  dismiss  the  application  for  leave  to  call  for  further evidence.  I allow the appeal.  The subsequent conviction is quashed.  The matter is referred back for rehearing.

Solicitors:

Checketts McKay, Alexandra, for Appellant

Wilkinson Adams, Dunedin, for Respondent

IN THE DISTRICT COURT AT DUNEDIN

BETWEEN                 POLICE

Informant

A N D  JOHN DAVID CHAPMAN

Defendant

Date of Hearing:        22 December 2006

Counsel:  T Hambleton for the Informant

R Checketts for the Defendant

NOTES OF EVIDENCE TAKEN BEFORE JUSTICES OF THE PEACE R FARIS AND R MCNEIL

MR CHECKETTS:  Good morning Your Worships.  My function this morning is to make an application on behalf of Mr C   for an adjournment of this Hearing until after Christmas.  We provided letters to the police from his medical practitioner Dr Williamson and also specialist referral to Dunedin Public Hospital on 22 January. Mr C   is suffering from what is called tinnitus, which is a ringing in the ears which makes it…a situation where he can hear things on a one-on-one basis but he’s he has difficulty dealing with situations like this where there is a room and other people in it and distance between the parties and things like that.  So on behalf of of Mr C   I am making this application for an adjournment until he can have the matter dealt with in the new year once he’s been to his medical specialist, and they hopefully can prescribe a course of treatment for him which will assist him with that. I have advised the police of this on a number of occasions and provided the Court with the copies of the various medical certificates on which we rely.   I have the originals here if Your Worships wish to see those.

MR T HAMBLETON:   My name is Hambleton and I appear for the police.   The police oppose the application for an adjournment.   This matter dates back now to May of this year.   This is the third fixture date.   It was adjourned firstly for the Defendant to attend a funeral and then the next fixture was adjourned because there wasn’t enough time, and this is the third adjournment application.   In the letter I received yesterday from Counsel regarding the hearing difficulty, it says that Mr C  ’s hearing problem means that he has difficulty hearing unless he’s in a one-on-one conversation.   My submission is that he will be in a one-on-one conversation if the Hearing proceeds to day.  There will be no more than one person talking to him at a time so it’s my submission that the matter should proceed today.

COURT:  Thank you Mr Hambleton.  We’ll adjourn for a moment.

COURT:    Mr  Checketts,  we’ve  considered  that  and  we  feel  the  matter  should proceed.  We’re conscious of the adjournments to date and we are certainly happy to accommodate a slow approach to ensure the Hearing isn’t a disability or a disadvantage, and if we feel that that is not working out, we’ll review.

COUNSEL REQUESTS A MOMENT WITH HIS CLIENT. CONSTABLE BUTTAR READS BRIEF OF EVIDENCE

MR T HAMBLETON:   Thank you, Constable.   I have no questions for you but

(inaudible).

MR CHECKETTS:  I’ve got nothing. THE COURT:  No. Thank you.

MR T  HAMBLETON:   That  concludes the evidence  for the Prosecution.    The equipment fee would be one of $80.00 but you, the Court have the discretion to impose anything up to $1,000.00.

THE COURT:  Thank you, Mr Hambleton.  We’ll adjourn for a moment. COURT ADJOURNS.

THE COURT:   Thank you , Mr Hambleton.   We find the matter proved and we award costs of $150.00 and Court costs $30.00.