Ching v Police

[2013] NZHC 2767

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2013-454-5 [2013] NZHC 2767

STEPHEN RALPH JOHN CHING Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:                   22 October 2013

Counsel:                  Appellant in Person

D J Flinn for Respondent

Judgment:                22 October 2013

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1]      Mr Ching appeals his conviction for failing to  stop at a stop sign.    The grounds of appeal focus on:

(a)       the drawn out process prior to a hearing and what Mr Ching submits is a procedural impropriety;

(b)a breach of natural justice concerning the membership of the Justices of the Peace panel that convicted him;

(c)       a challenge to the prosecution evidence; and

(d)      a dispute with the Justices’ conclusion as regards the credibility of

Mr Ching’s supporting witness.

CHING v POLICE [2013] NZHC 2767 [22 October 2013]

[2]      At the hearing the nature of the alleged natural justice breach became clearer to me.   I considered it appropriate to hear from the Crown on that matter before proceeding with the balance of the appeal.  I consider the appeal must be allowed.

[3]      The process of getting this matter to a hearing seems to have been one of those cases where things just keep going awry.  I do not attribute fault to anyone; just observe that mistakes or confusions kept happening.  It is one of these events that has led to the problem.

[4]      Mr Ching made it plain as early as February 2012 that he wanted a Court hearing to defend the charge.  He consistently pursued it.  Somehow, for reasons not obvious to me, there was a hearing of the matter in September which Mr Ching did not know of.

[5]      The hearing proceeded before a single Justice of the Peace who heard the prosecution evidence and entered a conviction.  The record of the hearing records Mr Ching as being present and as not cross-examining but that is incorrect.  Indeed, that this is so is clear from the fact that a decision was quickly made to set the

decision aside.1  A new hearing was directed.

[6]      Unfortunately the Justice of the Peace who heard the original invalid hearing also sat, with another, on the new hearing.  This was not known to Mr Ching at the time.  I accept that this was an error.  This was a credibility case, with the evidence of the police officer being strongly challenged.  Although the first matter proceeded by way of formal proof, the Justice of the Peace observed at the time:

It  is  clear  from  the  evidence  that  the  Court  has  heard  from  the  senior constable on oath this morning that he had a clear view of the intersection and it was clear on that basis ... that Mr Ching clearly did not stop.

[7]      These were the two trial issues, and it was incorrect for the same presiding officer to sit again, having heard the witness once before in the absence of the

defendant and having formed a favourable credibility impression.

1      How and by whom is not clear to me.

[8]      The appeal must be allowed.   In the overall circumstances no rehearing is

directed.

Simon France J

Solicitors:

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North