Carr-Gomm v Police

[2013] NZHC 415

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-105 [2013] NZHC 415

BETWEEN  MATTHEW PHILIP CARR-GOMM Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 March 2013

Appearances: Appellant in Person

J A Ongley for the Respondent

Judgment:      5 March 2013

Reasons:        6 March 2013

REASONS JUDGMENT OF GODDARD J

Solicitors:           Crown Solicitors, Wellington

Copy To:           M P Carr-Gomm, PO Box 9780, Wellington

CARR-GOMM V POLICE HC WN CRI-2012-485-105 [5 March 2013]

[1]      Mr Carr-Gomm was found guilty by Justices of the Peace of an offence of driving at a speed in excess of 50 kph.  The offence had been detected by approved vehicle surveillance equipment.   Before this Court he advanced three grounds of appeal:

(a)The  District  Court  did  not  consider  his  application  pursuant  to s 146(6) to have the certificate of accuracy relating to the surveillance equipment set aside;

(b)That a defended hearing was conducted on 5 November 2012 in his absence, resulting in a conviction; and

(c)That the District Court failed to communicate with him fairly and appropriately in relation to timetabling directions and service of documents in relation to the defended hearing on 5 November 2012.

Background events

Mr Carr-Gomm first appeared on this matter on 7 September before Justices of the Peace and pleaded not guilty.  In addition he made a verbal application, pursuant to s 146(6) of the Land Transport Act 1998 (“the Act”) to challenge the accuracy of the vehicle  surveillance  equipment.    The  date  of  5  November  2012  was  set  for  a defended hearing and Mr Carr-Gomm was advised by the Justices of the Peace that he could make his application pursuant to s 146(6) in person at a further hearing date on 3 October 2012, but that a written submission would be acceptable so long as it was filed before 19 September 2012.

[2]      On 12 September 2012, Mr Carr-Gomm filed a written application and a submission under s 146(6) of the Act.

[3]      On 3 October 2012 Mr Carr-Gomm’s application was before the Court again and was adjourned to 17 October 2012.  The Court record made by Justices of the Peace on 3 October records as follows:

Adjourned  to  17/10/12  for  Prosecution to  have  opportunity  to  consider defendants written application.   Substantive date for Defended Hearing on

5/11/12 to remain in Court List.

[4]      However, Mr Garr-Comm did not receive notification of this new date, as a “Notice to Defendant of New Hearing Date” posted to him on 3 October 2012 was sent to an incorrect address.  In that “Notice to Defendant of New Hearing Date” the Court advised as follows:

The hearing of the charge:

CRN  Charge  Charge Code

12085107188

Exceeded 50 Km/H Restricted Area –

Speed Camera – s40 & 133 L.T ACT

1998, ROAD USER RULE 2004

J101

against you has been adjourned.

The Registrar has changed the date of the hearing to 17 October 2012 at
10.00 am, in Courtroom 7 at the Wellington District Court.

You are required to attend the court hearing personally at that time and place.

[5]      The adjourned hearing date of 17 October 2012 was later referred to by the

Wellington Area Court Manager in a letter to Mr Carr-Gomm written on 7 November

2012 as “a nominal date only to monitor that police submissions has been filed”. That advice does not however accord with the “Notice to Defendant of New Hearing Date” set out above and incorrectly addressed.

[6]      The Court record next shows the date of 17 October 2012 with no entry beside it.

[7]      It appears that the police prosecutor and the New Zealand Police traffic camera operator respectively sent Mr Carr-Gomm a copy of the police submissions and the disclosure sought under s 146(6) of the Act, and in their covering correspondence referred to 5 November as the date for the defended hearing.

[8]      On  2  November  2012,  Mr  Carr-Gomm  wrote  to  the  District  Court  at Wellington with a copy to the Honourable Chester Burrows MP stating, inter alia, the following:

TO THE WELLINGTON DISTRICT COURT CC: HON CHESTER BORROWS MP

1.    I am disappointed that this Court has not afforded me the courtesy of communicating the outcome of my submission for the hearing that was held on 3rd October 2012.

2.    I  am  further  disappointed that  this  Court  has  not  afforded  me  the courtesy of communicating the time, date or specific place (namely

court room & floor) that I am required to attend.

3.   In fact, this Court itself has a [sic] never provided any formal communication or written correspondence to me regarding the fixtures on this matter.

4.    I  cannot  reasonably  prepare  for  a  defended  hearing,  and  acquire witnesses to provide expert evidence without sufficient prior knowledge of this information.

...

2nd November 2012.

[9]      It appears this letter was received by the District Court on 5 November 2012 but was not placed before the presiding Justices of the Peace.

[10]     The defended hearing proceeded on 5 November 2012 as a formal proof matter in the absence of any appearance by Mr Carr-Gomm.

[11]     The transcript of the hearing before the Justices of the Peace makes clear there was a degree of uncertainty as to whether the date of 17 October had been “just a timetabling date for response” by the Police to Mr Carr-Gomm’s application and submission under s 146(6) of the Act; and also whether a letter had been sent out by the “last Court Registrar” after that hearing to advise Mr Garr-Comm of the requirement for him to be at Court on 5 November 2012.  Specifically:

THE COURT:

Can we just check that point with the registrar that we had a letter to go to

Mr Carr-Gomm telling him to be here today. REGISTRAR:

It should have been attached if there was a letter that was sent out by the last

Court registrar.

THE COURT:

It  would have  a  Ministry of  Justice  –  no  10th   of  July  wanted it  to  be rescheduled. 17th of October he didn’t turn up. Ne we haven’t.

REGISTRAR:

Well I’m not sure who did this last time but whoever was on last should have
sent out a letter to the –

THE COURT:

We will assume that’s happened shall we and proceed.  Sergeant have you got a copy of the letter from the Court?

SERGEANT SHAW:

I do not Ma’am.

[12]     As is evident the Justices opted to “assume” that notification of the hearing date as firm had happened and proceeded with the hearing as a matter of formal proof.

Conclusion

[13]     In light of the fact that Mr Carr-Gomm took the steps required of him to defend the infringement offence and given the degree of uncertainty around the setting of dates and express notification of these dates, I am remitting the matter back to the District Court for rehearing on a date to be set and notified to Mr Carr- Gomm in writing at his correct address.

[14]    I have emphasised to Mr Carr-Gomm the importance of ensuring he is absolutely clear about the process from here on and of the requirement for him to attend Court prepared to fully argue his case on the new date set for the defended hearing.

[15]     The appeal is allowed and the case is remitted back to the District Court for rehearing and for a new date to be set.

Goddard J