C v Police HC Timaru Cri-2008-476-16

[2008] NZHC 1423

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2008-476-000016

C

Appellant

v

POLICE

Respondent

Hearing:         10 September 2008

Appearances: QCS Hix for Appellant

C A O'Connor for Crown

Judgment:      10 September 2008

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against conviction on a charge of theft. [2]   The factual background is as follows.

[3]      In October last year, the appellant was charged with stealing petrol from a Shell petrol station in Ashburton.  It is alleged he filled his car up with petrol at the pump and then went into the kiosk where he paid only for a can of drink, making no attempt to pay for the petrol.

[4]      The appellant, who was representing himself, entered a plea of not guilty and the matter was set down for a defended hearing on 11 February 2008.

C V POLICE HC TIM CRI-2008-476-000016  10 September 2008

[5]      Unfortunately, because of the number of cases set down for 11 February, the matter was not able to be heard on that date, and it was adjourned until the next available date, which was 19 May 2008.

[6]      However, when the matter was  called on 19 May, the appellant did  not appear and the case proceeded by way of formal proof in his absence.  After hearing evidence from the petrol station attendant and a police officer, the District Court Judge was satisfied the charge had been proved.  The Judge convicted the appellant and imposed a fine.

[7]      In an affidavit filed in support of his appeal, the appellant says the first he knew of the conviction was when he received a notice in the post.  He states he was shocked because he had been under the misapprehension the hearing date was 19

June.

[8]      The appellant then filed an application for a re-hearing in the District Court on the grounds he had been informed by the Court staff of the wrong date.

[9]      The application for a re-hearing was heard on 12 June 2008.  Unfortunately, that too proceeded in the appellant’s absence.  The Judge dismissed the application on the grounds the appellant had failed to provide any substantive reasons as to why the conviction was unsafe.  The Judge also noted it was not accepted the appellant had been advised of the wrong date.

[10]     There is no doubt that on 11 February the presiding Judge announced the new date as 19 May.   This has been confirmed by a tape recording.   There is also no doubt the appellant was present in Court when that date was announced.

[11]     However, given the Court did not send any written confirmation of the new date, I cannot exclude the possibility of a mistake.

[12]     As regards the hearing date of the re-hearing application, the appellant’s explanation for his no-show on that occasion is simply that he was never told of the date.  Again, there is no evidence of any letter having been sent to him by the Court.

[13]     In his affidavit, the appellant maintains his innocence and says that as a result of the conviction a substantial miscarriage of justice has occurred.  He says if he had been aware the correct hearing date was 19 May, he would have been there just as he had been there in February.

[14]     As to the substantive merits of his defence, the appellant submits he wishes to raise issues about identify and mens rea.   As to the first issue, the evidence the appellant was the customer in question appears compelling.  However, I accept there may be an argument about mens rea.

[15]     In the absence of the appellant, there was certainly sufficient evidence from which the Judge could draw an inference of dishonest intention.  However, I cannot be confident that, had the appellant been present, the outcome would still have been the same.

[16]     It therefore follows that I am prepared to allow the appeal.

[17]     In terms of remedy, counsel for the appellant urged me simply to quash the conviction and for there to be no re-hearing in the District Court.   The Crown opposes that approach.  I have decided that in the interests of justice there should be a re-hearing.  Petrol theft is a matter of concern to the community and as the Crown points out, what has happened here has not been due to any fault on the part of the police.  It was Mr C  , the appellant, who got the date wrong.

[18]     I therefore direct this matter to be remitted to the District Court for a re- hearing.  The appeal is allowed.

Solicitors:

QCS Hix, Timaru

Crown Solicitor, Christchurch