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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 415
Decision Date: 5 March 2013

CaseChat Overview and Summary

In the case of Carr-Gomm v Police, the appellant, Matthew Philip Carr-Gomm, appealed against his conviction for driving at a speed in excess of 50 kph, detected by approved vehicle surveillance equipment. The conviction was determined by Justices of the Peace. Carr-Gomm's grounds for appeal were that the District Court did not consider his application to set aside the certificate of accuracy for the surveillance equipment, that a defended hearing was conducted in his absence, and that the District Court failed to communicate with him fairly regarding timetabling directions and service of documents. The appellant argued that the District Court did not properly address his application to challenge the accuracy of the vehicle surveillance equipment under section 146(6) of the Land Transport Act 1998. Additionally, Carr-Gomm claimed that he did not receive proper notification of the adjourned hearing date, resulting in his absence from the defended hearing on 5 November 2012. Furthermore, he argued that the District Court did not communicate with him appropriately in relation to the timetabling directions and service of documents for the hearing.

The Court considered the appellant's arguments and found that the District Court did not adequately consider his application to challenge the accuracy of the surveillance equipment. Moreover, it was evident that Carr-Gomm did not receive proper notification of the adjourned hearing date, which resulted in him being unable to attend the defended hearing on 5 November 2012. The Court also noted that the District Court did not communicate effectively with Carr-Gomm regarding the timetabling directions and service of documents for the hearing. In light of these issues, the Court allowed the appeal and remitted the matter back to the District Court for rehearing, with a new date to be set and notified to Carr-Gomm in writing at his correct address. Goddard J emphasised the importance of ensuring that Carr-Gomm is clear about the process and the requirement for him to attend Court prepared to fully argue his case on the new date set for the defended hearing.

Orders