Chopra v Police
[2014] NZHC 448
•20 March 2014
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2013-419-61 [2014] NZHC 448
BETWEEN RAJ KUMAR CHOPRA Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 12 and 20 March 2014
Appearances: M Meyrick for Appellant
T C Tran for Respondent
Judgment: 20 March 2014
(ORAL) JUDGMENT OF LANG J [on appeal against conviction]
RAJ KUMAR CHOPRA v NEW ZEALAND POLICE [2014] NZHC 448 [20 March 2014]
[1] Mr Chopra pleaded guilty in the District Court to a charge of driving with excess breath alcohol. On 7 August 2013, Judge Spiller sentenced Mr Chopra to six months home detention.1 Mr Chopra now seeks leave to appeal out of time against conviction.
Background
[2] On Tuesday 16 April 2013, a police patrol vehicle stopped a vehicle driven by Mr Chopra on the Waikato Expressway near Huntly. Mr Chopra’s vehicle had been seen speeding and following too close to another vehicle. Breath test procedures were carried out, and Mr Chopra’s breath was found to contain 492 micrograms of alcohol per litre of breath.
[3] Before Mr Chopra left the police station, he was served with a summons issued under the authority of s 19B of the Summary Proceedings Act 1957. The summons required Mr Chopra to appear in the Huntly District Court on 14 May
2013 at 10 am. It also recorded that Mr Chopra was to face a charge of driving with excess breath alcohol.
[4] The police then laid an information (“CRN 274”) in the Huntly District Court on 22 April 2013. The information had a first call date of 14 May 2013, and alleged that Mr Chopra had been driving with excess breath alcohol at Huntly on 16 April
2013.
[5] On 30 April 2013, the police filed a further and identical information in the
Huntly District Court (“CRN 287”). This, too, had a first call date of 14 May 2014.
[6] Mr Chopra duly appeared on 14 May 2013. When CRN 274 was called, the prosecutor obtained leave to withdraw that information. The reason for this occurring is not apparent from the Court record. Thereafter, the prosecution
proceeded under, and Mr Chopra subsequently pleaded guilty to, CRN 287.
1 New Zealand Police v Chopra DC Huntly CRI-2013-024-000358, 7 August 2013.
Jurisdiction to appeal against conviction following entry of guilty plea
[7] As the Court of Appeal confirmed in R v Le Page, an appeal against conviction will only be entertained in exceptional circumstances where the appellant has entered a guilty plea to the charge.2 The appellant must show that a miscarriage of justice will occur if the conviction is permitted to stand. The Court of Appeal indicated that one such example will be where the appellant has pleaded guilty to a charge that he or she could not in law have been convicted of. The Court observed that the case of a charge being laid out of time was an example of this type of situation.3
[8] Counsel for Mr Chopra relies on these principles. He argues that CRN 287 was effectively a nullity, because it was filed more than seven days after the day on which the police carried out the evidential breath test on Mr Chopra. In cases where the police utilise the s 19B summons procedure, s 19B(3) requires an information to be laid no later than seven days after the evidential breath test is carried out. There is ample authority to the effect that an information will be a nullity where a summons has been issued under s 19B, and the information is not laid within the seven day
period prescribed by s 19B(3).4 If the charge was a nullity, it follows that Mr Chopra
could not in law be convicted of it.
Decision
[9] In the present case the original information, CRN 274, was laid within the seven day period prescribed by s 19B(3). For that reason it was not a nullity. Even if it had been, however, this Court has held that there is nothing to prevent the prosecution laying a new information provided this is done within the six month time period prescribed by s 14 of the Act.
[10] The issue was first touched upon in Kopua v Police,5 and was later subjected to a detailed analysis by Tipping J in McNeill v Ministry of Transport.6 As Tipping J
2 R v Le Page [2005] 2 NZLR 845 at [16].
3 At [18].
4 See eg Wainhouse v Police HC Auckland CRI-2009-404-68, 19 October 2009.
5 Kopua v Police HC Palmerston North AP 22/86, 19 August 1986.
6 McNeill v Ministry of Transport HC Dunedin AP 12/92, 2 April 1992.
observed in McNeill, the s 19B procedure is no more than a vehicle to ensure that the defendant is given notice of the date upon which the charge will first be called in court.7 The summons has no independent life of its own. Its utility is spent once an information is filed. The information is the charging document that the Court will ultimately be required to determine.
[11] The conclusion reached in Kopua and McNeill has subsequently been applied in numerous cases in this Court.8 It was also recently the subject of extensive challenge before Wylie J in Jordan v New Zealand Police.9 Wylie J held that the reasoning and conclusions reached by Tipping J in McNeill remain the law of this country.10
[12] Counsel for Mr Chopra contends that these cases are at odds with two other decisions of this Court, Ministry of Transport v Kendall,11 and Rickey v Police.12 He relies on the following passage from Kendall as establishing the principle that, once the prosecution elects to adopt the s 19B procedure, it is precluded from relying on s 19 to lay another information outside the seven day period prescribed by s 19B:13
In 1988, the new s 19B was enacted which followed the general pattern of s
19A. The subsection which has created the difficulty in the present case is subsection (3) of s 19B. That subsection appears to me to have been interpreted, in the instant case, in isolation when it ought to have been interpreted in the context of the section in its entirety. In my view s l9B has absolutely no application whatever to the situation where an enforcement officer does not resort to the procedure which he is authorised to follow in that particular section. If the enforcement officer chooses not to act pursuant to s 19B of the Summary Proceedings Act, then he must follow the procedure laid down in the earlier sections, namely ss 12, 14 and 19(1)(a).
Once, however, the enforcement officer has decided to act pursuant to 19B, he must then sign and serve the summons referred to in the prescribed form - and that, of course, is a departure from the ordinary course of events as normally a summons is not issued until after the information has been laid. Once the summons, in the required form, has been signed and served, then the enforcement officer is bound to follow the procedure laid down in subsection (3) of s 19B. I am of the view that that particular section provides
7 McNeill v Ministry of Transport, above n 6 at 4.
8 Police v Armishaw (1993) 10 CRNZ 461; Police v Edwards [2006] DCR 217; McKenzie v
Police HC Wanganui CRI-2010-483-53, 4 November 2010.
9 Jordan v Police HC Whangarei CRI-2001-488-1, 2 August 2011.
10 At [33].
11 Ministry of Transport v Kendall (1989) 5 CRNZ 287.
12 Rickey v Police (1994) 11 CRNZ 613.
13 Ministry of Transport v Kendall, above n 11 at 289.
for nothing more than an alternative procedural course which an enforcement officer may follow thus avoiding the subsequent necessity to become involved in the service of a summons following the filing of an information under s 12 which prior to 7 January 1989 had been the only procedure available for originating prosecutions in relation to evidential breath test offences.
(Emphasis added)
[13] It is important, however, to read this passage in context. In Kendall, Sinclair J was required to determine whether the introduction of the s 19B procedure in January 1989 meant that all excess breath alcohol prosecutions were thereafter required to be commenced using that procedure. His Honour rejected that submission, and said:
There is in my view nothing in s 19B which requires all evidential breath test offences to be dealt with pursuant to its terms and there is nothing in the section, or in any other section, which shows that the procedure which existed prior to 7 January 1989 for dealing with these types of offences had in any way been abrogated. To abrogate that particular procedure would, in my view, require plain and unambiguous language - which simply just does not exist.
[14] The issue raised in Kendall did not require Sinclair J to consider whether it was possible for enforcement authorities to use the s 19 procedure in circumstances where they had earlier invoked the s 19B summons procedure, but then failed to file an information within the time limit prescribed by that section. It is clear, however, that he did not consider that the enactment of s 19B abrogated the alternative procedure available under s 19 of the Act. For that reason, I do not consider Kendall assists the argument for Mr Chopra.
[15] In Rickey, Tompkins J noted Sinclair J’s observation in Kendall that the police were bound to follow the procedure prescribed by s 19B once they elected to use it. Again, however, this observation needs to be viewed in context. In Rickey, the police had invoked the s 19B summons procedure after the appellant had been found to have been driving with excess breath alcohol. The summons in question required the appellant to appear in court three days later. When the appellant appeared in court, however, it was discovered that no information had been laid. He then left the court. Later the same day, the police filed an information charging the appellant with driving with excess breath alcohol. A Deputy Registrar then issued
another summons requiring the appellant to appear in court on a subsequent date. The information was therefore laid within the time required by s 19B. The issue that Tompkins J was required to determine was whether the Deputy Registrar had the power to issue the second summons.
[16] Tompkins J held that the Deputy Registrar did not have that power. Given that there had been no prejudice to the appellant, however, he considered that the procedural defect that had occurred could be cured using s 204 of the Summary Proceedings Act 1957. Section 204 provides that no information shall be held invalid by virtue of any defect, irregularity, omission, or want of form unless the Court is satisfied there has been a miscarriage of justice.
[17] Tompkins J referred to Kendall in the following passage:14
Mr Smith submitted that even if that be so, the information that was issued on 20 July for the appellant to appear on 30 August could be regarded as a valid information issued pursuant to s 19. This is the standard section relating to the issue of a summons. It provides that when an information has been laid a registrar may issue a summons to the defendant in the prescribed form. Mr Smith's submission was that the information filed on 20 July could be regarded as an information laid under s 19 so that the summons was a valid summons issued pursuant to that section.
There are, however, two difficulties with that submission. In Ministry of Transport v Kendall, Sinclair J held that once the fast track procedure has been commenced the enforcement officer must follow that procedure. It is clear that in the present case the fast track procedure was commenced and that the information was laid pursuant to s 19B, not pursuant to s 19. The second difficulty is that it is clear from the evidence that the deputy registrar was not issuing the summons pursuant to s 19, but did so because she had enlarged the information that had been filed under s 19B to 30 August. It follows from these conclusions that the summons she purported to issue on
30 July was not validly issued. …
[18] It is clear from this passage that Tompkins J’s reference to Kendall was directed to the submission for the respondent that the Court was entitled to treat the second summons as an information having been laid under s 19, and not under s
19B. When Tompkins J’s comments are considered in context, I do not consider that they are at odds with the reasoning in McNeill and Jordan.
[19] A similar situation to that which occurred in the present case arose in Police v Edwards.15 In that case the police laid an information within the required time after issuing a summons under s 19B. They were concerned, however, that it may have been laid one day out of time. To guard against that possibility, they withdrew the original information and proceeded on the basis of a second information. On appeal, Keane J held that there was nothing wrong with that procedure being adopted. He
observed:
[38] The police do not need to issue a s 19B summons. They can revert to the more general practice of laying and serving an information: Ministry of Transport v Kendall (1989) 5 CRNZ 287, Sinclair J. Even where they do issue a s 19B summons the police can, as in this case, withdraw an information filed late and lay an identical information: McNeill v Ministry of Transport (HC Dunedin, AP 12/92, 2 April 1992, Tipping J). In this respect, the Judge made no error.
[20] It follows, in my view, that the police were entitled to withdraw the original information in the present case, and then to proceed on the information filed in substitution. That information was filed well within the six month time limit prescribed by s 14 of the Act.
[21] As a result, Mr Chopra cannot demonstrate that he has been the victim of an injustice.
Result
[22] The application for leave to appeal out of time is accordingly dismissed.
Lang J
Solicitors:
Crown Solicitor, Hamilton
Counsel:M Meyrick
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