Colman v Attorney-General

[2012] NZHC 1343

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2011-488-723
CIV-2011-488-724
CIV-2011-488-726

CIV-2011-488-727 [2012] NZHC 1343

BETWEEN  JOHN COLMAN Appellant

ANDTHE ATTORNEY-GENERAL Respondent

Hearing:         5 June 2012

Counsel:         Appellant in person

J Catran and R Hoare for Respondent

Judgment:      14 June 2012

JUDGMENT OF LANG J

[on appeal against orders striking out proceedings]

This judgment was delivered by me on 14 June 2012 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

JOHN COLMAN V THE ATTORNEY-GENERAL HC WHA CIV-2011-488-723 [14 June 2012]

[1]      Mr Colman has filed nine separate proceedings in the District Court alleging that the police and the courts have breached his rights to a fair trial in criminal proceedings that flowed through the District Court, this Court, the Court of Appeal and the Supreme Court.

[2]      On 10 October 2011, Judge de Ridder ordered eight of Mr Colman’s claims to be struck out.1   He now appeals to this Court against that decision.  The Attorney- General has not appealed against the Judge’s decision to allow the remaining claim to remain afoot.

[3]      In order to understand the issues that the appeals raise, it is necessary to set out the factual background in greater detail.

Background

[4]      On 17 December 2007, Mr Colman became involved in an incident with some persons who came to his property.  This resulted in Mr Colman swearing at those persons.   The police were called, and they arrested Mr Colman.   He was charged with behaving in a disorderly manner.

[5]      Mr Colman pleaded not guilty to the charge, and it was scheduled to be heard on 18 March 2008.   On that date, however, the charge was adjourned over Mr Colman’s objection because the officer in charge of the case was unavailable.  The charge was subsequently scheduled to be heard on 16 June 2008.

[6]      One week prior to the fixture, the police laid a second and alternative charge of using insulting language.  It seems that the police failed to serve Mr Colman with a summons in respect of that charge, which was due for first call on the same date as the defended hearing of the charge of disorderly behaviour.

[7]      Mr Colman was unaware of the existence of the new charge when his case was called on 16 June 2008, and he was not asked to enter a plea to it at the

commencement of the hearing.  Notwithstanding these procedural errors, the hearing

1 Colman v The Attorney-General DC Whangarei CIV-2011-088-104, 10 October 2011.

ostensibly proceeded in respect of both charges.  At the conclusion of the hearing, Judge Maude acquitted Mr Colman on the charge of disorderly behaviour but found him guilty on the charge of using insulting language.   The Judge convicted Mr Colman on that charge, and ordered him to come up for sentence if called upon to do so within the next six months.2

[8]      Mr Colman immediately filed an appeal against conviction on the charge of using insulting language.    Judge Maude  subsequently learned  of the  procedural errors that had occurred at the hearing on 16 June 2008, and granted an application by Mr Colman for an order under s 75 of the Summary Proceedings Act 1957 that the charge be reheard.

[9]      The charge was then reheard on 23 April 2009 before Judge Tompkins.  At the conclusion of this hearing, the Judge found the charge proved and convicted Mr Colman on it.3    He fined Mr Colman $250, and ordered him to pay Court costs of

$130.

[10]     Mr Colman appealed against this conviction, but in a judgment delivered on

22 December 2009 Allan J found that the Judge was entitled to find the charge proved.4   Allan J considered, however, that the direct and indirect consequences of a conviction  would  be out  of all  proportion  to  the gravity of the  offending.    He therefore discharged Mr Colman without conviction pursuant to s 106(1) of the Sentencing Act 2002.

[11]     Mr Colman was not satisfied with this decision.  He sought leave to appeal to the Court of Appeal and then the Supreme Court against the Judge’s decision to discharge him without conviction.  Both Courts held that, where a person has been discharged without conviction, no further rights of appeal lie to either the Court of

Appeal or the Supreme Court.5

2 Police v Colman DC Whangarei CRI-2007-088-005556, 18 July 2008.

3 Police v Colman DC Whangarei CRI-2008-088-002767, 23 April 2009.
4 Colman v Police HC Whangarei CRI-2009-488-09, 22 December 2009.

5 Colman v Police [2010] NZCA 474; Colman v Police [2010] NZSC 147.

[12]     Mr  Colman  then  elected  to  file  civil  proceedings  against  the  Attorney- General in the District Court alleging breaches of his rights under the New Zealand Bill of Rights Act 1990 (“the Act”).

Preliminary issue

[13]     Before dealing with the discrete issues that the appeals raise, it is necessary to deal briefly with a preliminary issue Mr Colman sought to have determined at the commencement  of  the  hearing.     He  sought  to  have  passages  of  the  written submissions filed by counsel for the Attorney-General struck out or not read because they conflict with the ultimate conclusion reached by Allan J when he allowed Mr Colman’s appeal against conviction.  I declined to determine the issue at that point, but I told Mr Colman I would deal with it in my substantive judgment.

[14]     This issue arises because the legal effect of a discharge without conviction is that the person discharged is deemed to have been acquitted.6   There is no difference in  legal  terms  between  an  acquittal  on  the  merits  and  a  discharge  without conviction.7     Mr Colman took issue with passages in the Attorney-General’s submissions that implied, in his view, that he remained guilty of the charge of using insulting behaviour.  He considers the effect of Allan J’s judgment to be the quashing of an unlawful conviction, resulting in a complete and unconditional acquittal on the charge.

[15]     I  have  already  dealt  with  this  issue  to  some  extent  in  setting  out  the background to the proceedings.8   Nevertheless, it is important that I explore it again in greater detail.

[16]   Mr Colman advanced several grounds in support of his appeal against conviction.   Allan J considered each of these, but found none to have been established.  Having reached that point, the Judge expressed his ultimate conclusion

as follows:9

6 Sentencing Act 2002, s 106(2).

7 Colman v Police [2010] NZSC 147 at [9].
8 At [10].

9 Colman v Police, n 4.

[94]     Mr  Colman  maintained  on  appeal  that  he  had  no  intention  of breaking the law, and was not a criminal.   I accept that assurance to the extent that he did not intend to commit a criminal offence.  But the Judge was entitled and indeed bound to find that Mr Colman had deliberately uttered the words which, as matters turned out, did constitute a criminal offence.  It is plain enough that he was in a sense provoked, but the existence of a state of affairs aggravated by Mr Panther’s presence on his property does not in law provide a justification for the use of language that was, on any view, insulting in the circumstances.  The Judge was in my opinion right to find the appellant guilty.

[17]     Having concluded that the prosecution had established the essential elements of the charge to the required standard, Allan J then turned to consider whether the circumstances of the case justified Mr Colman being discharge without conviction. He ultimately determined that issue in Mr Colman’s favour.

[18]     It therefore follows, as a matter of fact, that Allan J determined that Judge Tompkins was entitled to conclude that Mr Colman had committed an act amounting in law to the use of insulting language in circumstances where he was reckless as to whether any person was insulted by those words.  Allan J considered, however, that Mr Colman should not be convicted on that charge because the direct and indirect consequences of a conviction would be out of all proportion to the seriousness of the offending.

[19]     As a result, whilst Mr Colman is deemed to have been acquitted, the fact remains that Allan J upheld Judge Tompkins’ conclusion that the essential elements of the charge had been proved.

[20]     I also record that counsel for the Attorney-General unreservedly accepted that nothing in her submissions should be taken to imply that Mr Colman remains guilty of the charge.

Relevant principles

[21]     The Attorney-General applied to the District Court for orders under r 2.50.1 of the District Courts Rules 2009 that the proceedings be struck out.

[22]     There is no dispute regarding the principles to be applied in a strike out application.   For present purposes the Court may strike out a proceeding on two grounds.  First, the Court may strike the proceeding out because it does not disclose an arguable or tenable cause of action.  This jurisdiction must be exercised sparingly, and only in the clearest of cases.10   The Court must assume that the facts relied on in the pleadings are capable of proof, except where they are entirely speculative and without foundation.11

[23]     Secondly, the courts have an inherent jurisdiction to strike out a proceeding where it amounts to an abuse of the Court’s process.  The purpose of this jurisdiction is to uphold public confidence in the administration of justice.12   The circumstances in which the jurisdiction may be exercised are many, but an attempt to re-litigate issues that have already been finally decided is one of them.  The Courts will not permit a litigant to mount a collateral attack on a final decision made by a court of

competent  jurisdiction  in previous  proceedings  in  which  the plaintiff had  a full opportunity to contest the decision in the Court by which it was given.

The Judge’s decision

[24]     After setting out the history to the various proceedings and describing Mr

Colman’s claims, the Judge concluded:13

[8]       Apart from the proceedings in CIV-2011-088-104, the arguments for the defendant in support of the strike out applications are unanswerable.  Mr Colman has had multiple hearings which have variously considered all the grievances he now raises.   In particular, all of his grievances disclosed in these proceedings have been dealt with comprehensively, with respect, in the High Court decision dealing with his appeal from the District Court decision finding him guilty on the charge of insulting language.

[9]       In respect of all of the proceedings apart from CIV-2011-088-104, they clearly amount to a collateral attack on previous decisions of the Court. As such, they are clearly an abuse of process and must be struck out.

10 Attorney-General v Prince [1998] 1 NZLR 262 (CA); Couch v Attorney-General [2008] NZSC 45 at [33].

11 Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.

12 Hunter v Chief Constable of West Midlands Police [1982] AC 529 (HL) at 536; Reid v NZ Trotting

Conference [1984] 1 NZLR 8 (CA) at 9; Bryant v Collector of Customs [1984] 1 NZLR 280 (CA) at

282.

13 Colman v The Attorney-General, n 1.

[25]     The Judge dealt with the claims in an omnibus fashion by holding that the issues raised in each of Mr Colman’s claims had already been the subject of final determination in earlier proceedings.   For that reason he considered that they amounted to a collateral attack on previous decisions of the Court, and struck them out accordingly.

[26]     It is now necessary to consider the individual claims in order to determine

whether the Judge’s conclusion in relation to each was correct.

The individual claims

[27]     The notices of claim that Mr Colman has filed are lengthy, and each contains numerous allegations.  During the hearing before me, however, Mr Colman tendered two documents in which he refined each of his claims.  He confirmed to me that he was prepared to be bound by the reformulation of his claims as set out in those documents.  From this I take Mr Colman to accept that, if necessary, he will re-plead his notices of claim so that the substance of each claim conforms with the documents he presented to me.

CIV-2011-088-194

[28]     This claim arises out of the events that led to the adjournment of the charge of disorderly behaviour on 18 March 2008.  The claim rests on an assertion that the police failed in their “omnipresent duty” to keep Mr Colman appraised, in a timely manner, of developments that might have a bearing on the conduct of the proceeding. Underlying this claim is Mr Colman’s assertion that the police decided well before

18 March 2008 that they would not be proceeding to a defended hearing on 18

March 2008.  Notwithstanding this knowledge, they failed to advise Mr Colman of their intentions.

[29]     Mr Colman contends that the police deliberately failed to disclose their true intentions from him for as long as they could, and that they did so in order to impair his ability to defend the charge.  He argues that this is an arguable breach of his right

to a fair trial under s 25(a) the Act, and also a breach of his right under s 25(b) to be tried without undue delay.

[30]     In considering these claims it is necessary to bear in mind the wording used in ss 25(a) and (b).  The right under s 25(a) is “to a fair and public hearing by an independent and impartial Court”.  The right under s 25(b) is “to be tried without undue delay”.

[31]     Conduct by the police of the type alleged by Mr Colman under this head might persuade the Court hearing the charge to dismiss it for abuse of process.  It cannot, however, amount to the breach of a right to a fair and public hearing by an independent and impartial Court.  The focus on s 25(a) is on the hearing rather than on the conduct of parties leading up to it.  For that reason the alleged breach cannot amount to a breach of s 25(a).

[32]     Such conduct might, however, amount to a breach of s 25(b) if it resulted in the creation of undue delay prior to trial.  The period of delay would commence on

18 March 2008, when the Judge adjourned the defended hearing over Mr Colman’s opposition.   It would end with the hearing before Judge Maude on 16 June 2008. Thereafter, any further delay was systemic, and could not be attributed to the actions of the police.

[33]     The issue of delay was one of the grounds of Mr Colman’s appeal against his conviction.   In that context, Allan J was required to consider whether the delay during the period between the date upon which Mr Colman was charged and the hearing on 23 April 2009, amounted to a breach of his right to be tried without delay under s 25(b). The Judge said:14

Undue delay

[56]      Section 25(b) of the New Zealand Bill of Rights Act 1990 provides that everyone who is charged with an offence has, in relation to the determination of the charge, the right to be tried without undue delay.  In the leading case in New Zealand, Martin v District Court at Tauranga [1995] 2

NZLR 419, the Court of Appeal emphasised that each case will turn on its

14 Colman v Police, n 4.

own facts, and that in particular there must be an inquiry as to the causes of the delay, and as to the existence of prejudice to the accused.

[57]      Here, the total delay was of the order of 18 months.  For a relatively minor charge a delay of that sort is highly regrettable.  Mr Colman had no responsibility for it at any point. In essence, the delay arose from:

a)     The unavailability of a police witness on the day of the first fixture;

b)     The listing of too many defended cases on the one day on the second fixture date;

c)     The  grant  of  a  retrial  following  procedural  irregularity  (the failure to take a plea) at the first trial.

...

[65]      Accordingly, the appellant suffered no special prejudice arising from the  delay.    I  accept  of  course,  that  he  must  have  suffered  a  degree  of prejudice in the more general sense, especially as he is a man of impeccable character who had never before faced a criminal prosecution.  I accept that this case was nothing short of an ordeal for him.  But having said that I am not satisfied that the delay reached the point at which it could be said that his rights  under  s  25(b)  of  the  New  Zealand  Bill  of  Rights Act  had  been infringed.  The appellant was on bail throughout.  The charge he faced was comparatively minor, and did not carry a sentence of imprisonment.   The delays were largely systemic.  Moreover, the ordinary remedy for a breach of s 25(b) is a stay of proceeding: Martin at 424.  Mr Colman was at liberty at any stage to make an application for a stay but did not do so.  As I hold in this judgment the appellant was rightly convicted.

[66]      In  all  the circumstances of  this case,  I do  not  consider that  the various  delays  encountered  by  Mr Colman  were  such  as  to  warrant  the quashing of his conviction.

[34]     These passages confirm that Allan J determined that any delay that arose in relation to the hearing of the criminal charges did not amount to a breach of Mr Colman’s rights under s 25(b) of the Act.  The claim in CIV-2011-088-194 amounts to a collateral attack on that finding.  For that reason Judge de Ridder was right to strike the claim out on the basis that it amounts to an abuse of process.

CIV-2011-088-195

[35]     This claim arises out of the fact that the police failed to serve a summons on Mr Colman in relation to the new charge of using insulting language.   Section 24(1) of  the  Summary Proceedings Act  1957  requires  a  summons  to  be  served  on  a defendant in one of the ways specified in the section.   For present purposes I am

required to proceed on the basis that Mr Colman can prove that the police took no steps to bring the existence of the charge to Mr Colman’s notice prior to the hearing on 16 June 2008.

[36]     Mr Colman contends that in failing to serve the summons on him, the police breached his rights under ss 24, 25 and 26 of the New Zealand Bill of Rights Act

1990.

[37]     The fact that this claim relates to conduct prior to the hearing of the charge precludes a claim under s 25 of the Act, because s 25 only guarantees minimum rights in relation to determination of the charge.  It does not relate to conduct that precedes determination of the charge.  Similarly, there can be no breach of s 26 under this head, because it relates to retroactive penalties and double jeopardy.  Mr Colman had not been finally convicted or acquitted of any offence prior to the hearing on

16 June 2008.  There is therefore no tenable cause of action under either of those heads.

[38]     The failure to serve the summons could, however, amount to a breach of s 24(a) and (d) of the Act, which provide:

24     Rights of persons charged

Everyone who is charged with an offence—

(a)     Shall be informed promptly and in detail of the nature and cause of the charge; and

...

(d)     Shall  have  the  right  to  adequate  time  and  facilities  to  prepare  a defence; and

...

[39]     If the police took no steps to bring the new charge to Mr Colman’s attention, I accept they arguably breached his right to be informed promptly and in detail of the nature of the charge.  The prospects of Mr Colman obtaining more than declaratory relief for any such breach may be slim because of the fact that he subsequently obtained a re-hearing of that charge.  Nevertheless, I accept Mr Colman’s submission that  no  Court  has  yet  finally  determined  whether  the  police  failed  to  serve  a

summons on him and, if they did, whether that failure amounted to a breach of his rights under s 24(a) of the Act.  He is entitled to know whether that was the case and, if so, the nature of any relief that should be granted.  For that reason I accept that he should be permitted to continue with this particular claim.

[40]     The notice of claim will, however, need substantial amendment so that it sets out clearly and succinctly the basis of the claim.  The claim will be limited to the alleged failure by the police to inform Mr Colman promptly of the nature and cause of the new charge.

[41]     If Mr Colman was unaware of the existence of the new charge at the hearing on 16 June 2008, it follows that he was deprived of the right to have adequate time and facilities to prepare his defence to the charge. Any breach of Mr Colman’s rights under s 24(d) was cured completely, however, by the fact that Judge Maude set aside the conviction on the charge of insulting language and then granted a rehearing in respect of that charge.  Thereafter Mr Colman had ample time to prepare his defence in relation to the charge before the hearing before Judge Tompkins on 23 April 2009. That aspect of Mr Colman’s claim cannot be taken further, and must remain struck out.

CIV-2011-088-203

[42]     The nub of this claim is that Judge Maude convicted Mr Colman on a charge of using insulting language before Mr Colman was aware of the existence of the charge.  Mr Colman contends that this amounts to a breach of his rights to a fair trial under s 25(a) of the Act.  He contends that it is not possible to have a fair trial in circumstances where he was completely oblivious to the charge in respect of which the trial was being held.

[43]     Mr Colman’s argument on this point is undoubtedly correct.  It is not possible for any person to have a fair trial on a criminal charge if they are not aware of the existence of the charge during the course of the trial.  That is no doubt why Judge Maude granted Mr Colman’s application for a rehearing.

[44]     The entry of the original conviction on the charge of using insulting language was completely remedied, however, when Judge Maude set the conviction aside on

28 October 2008.  Mr Colman also has the benefit of Judge Maude’s decision on that date acknowledging that the conviction should be set aside.

[45]     In my view this issue has already effectively been determined by the District Court.   No useful purpose could be served by a further judgment of the District Court confirming that the entry of the original conviction amounted to a breach of Mr Colman’s rights under s 25(a) of the Act.  No claim for monetary compensation would  be  payable,  because  the  entry  of  the  conviction  was  a  judicial  act.    In

Attorney-General   v   Chapman15     the   Supreme   Court   held   that   public   law

compensation is not available for breaches by the judiciary of s 25 of the Act.

[46]     I therefore consider it would be a misuse of the Court’s procedure to allow this particular claim to proceed further.   For that reason the Judge was correct to strike it out.

CIV-2011-088-211

[47]     This claim focuses on the validity of the order that Judge Maude made on

20 October 2008 granting Mr Colman a rehearing on the charge of using insulting language.  Mr Colman relies on Allan J’s finding that Mr Colman’s original trial on the charge of using insulting language was effectively a nullity.  He contends that, if the original hearing was a nullity, the Judge had no jurisdiction to order a rehearing.

[48]     Mr Colman’s argument may be technically correct.  If so, however, the fact that the original trial was a nullity does not mean that the charge of using insulting language was also a nullity.  It remained in existence and needed to be determined.

[49]     The  effect  of  the  order  granting  a  rehearing  was  that  the  charge  was ultimately heard before another Judge.   It may not have been necessary for Judge Maude to make an order granting a rehearing.   Rather, any Judge of the District

Court could have directed that Mr Colman be given time to prepare his defence on the new charge and that it be heard at a later date.

[50]     The fact that Judge Maude purported to exercise his power under s 75 of the Summary Proceedings Act 1957 to grant Mr Colman a rehearing could not possibly amount to a breach of Mr Colman’s fair trial rights.  For that reason this proceeding does not contain a tenable cause of action, and Judge de Ridder was right to strike it out.

CIV-2011-088-217

[51]     This claim relates to the hearing before Judge Tompkins on 23 April 2009. During the course of that hearing, the Judge delivered a ruling in the following terms:16

I rule as a matter of law, neither s 48 nor s 56 of the Crimes Act 1961 applies in relation to the charge that you are charged with.  Now Mr Colman, the only issue that you will be permitted to cross-examine on is the issue going to  proof  as  to  recklessness  or  otherwise  as  to  whether  any  person  was insulted.

[52]     Mr Colman argues that the effect of the ruling was to confine him to cross- examining  prosecution  witnesses  “on  about  10%  of  what  the  prosecution  had adduced by the time of the ruling, and after the ruling continued to adduce”.   He contends that the Judge’s ruling amounted to a breach of his right to a fair trial under s 25(b) of the Act.

[53]   The charge alleged that Mr Colman had used insulting language in circumstances where he was reckless as to whether any person was insulted by those words.  The effect of the Judge’s ruling was that the defences of self defence and defence of property under ss 48 and 56 of the Crimes Act 1961 were not available in respect of that charge.

[54]     There was no dispute that Mr Colman had used the language alleged by the prosecution.   For that reason the only issue the prosecution was required to prove

was whether Mr Colman was reckless as to whether any person was insulted by the words that he used.  This finding clearly underpinned the Judge’s decision to restrict the  scope  of  Mr  Colman’s  cross-examination.     If  the  Judge  was  correct  in determining that no defence was available to Mr Colman under ss 48 and 56 of the Crimes Act 1961, his decision to restrict cross-examination to the only remaining relevant issue was also obviously correct.

[55]     This  issue  formed  one  of  the  grounds  of  Mr  Colman’s  appeal  against

conviction. Allan J dealt with it as follows:17

[55]     In this country the law is that the defence afforded by ss 48 and 56 applies only where an accused person seeks to justify a physical attack or the threat of a physical attack.   That did not occur here.   Mr Colman simply swore and was ultimately convicted of an offence arising from the language he employed.   There is no evidence that he used, or threatened to use, physical violence.  The District Court Judge was therefore quite right to rule out the appellant’s intended reliance on ss 48 and 56, which were of no relevance at trial.

[56]     It follows that this issue has already been determined, and that any attempt to mount a collateral attack on it would be an abuse of process.  For that reason Judge de Ridder was correct to strike this claim out.

CIV-2011-088-234

[57]     The essence of this claim is that neither Judge Tompkins nor Allan J dealt with a submission by Mr Colman to the effect that he was entitled to rely on s 42 of the Crimes Act 1961 as justification for his actions.   Section 42(1) provides as follows:

42      Preventing breach of the peace

(1)     Every  one  who  witnesses  a  breach  of  the  peace  is  justified  in interfering to prevent its continuance or renewal, and may detain any person  committing  it,  in  order  to  give  him into  the  custody  of  a constable:

Provided that the person interfering shall use no more force than is reasonably necessary for preventing the continuance or renewal of the breach of the peace, or than is reasonably proportionate to the danger to be apprehended from its continuance or renewal.

17 Colman v Police, n4.

...

[58]     I have now read the transcript of the evidence and submissions from the hearing before Judge Tompkins on 23 April 2009.  The hearing commenced during the morning of 23 April 2009, and concluded after the Judge sentenced Mr Colman at 4.44 pm that afternoon.  The transcript of the hearing spans 126 typewritten pages. On my reading of the transcript Mr Colman did not refer at any stage to the fact that he was relying upon s 42 of the Crimes Act 1961 as providing a defence to the charge.

[59]     I have also read the transcript of the hearing before Allan J on 15 and 21 July

2009.  That hearing occupied approximately one and a half days, and the transcript is

290 pages in length.  Once again, Mr Colman does not refer at any point to the fact that he was relying upon s 42 of the Crimes Act 1961.

[60]     If Mr Colman wished either Judge to consider a possible defence based on s 42, it was incumbent on him to raise it and to make submissions in support of his argument.  Mr Colman’s apparent failure to raise the issue at any stage during either hearing means that he cannot now claim that he failed to receive a fair trial because the Judges did not consider it.

[61]     For that reason Judge de Ridder was correct to strike out this proceeding.

CIV-2011-488-240

[62]     In  this proceeding Mr  Colman contends that the police deliberately kept secret from him the existence of a police officer who had the capacity to  give valuable evidence in his defence.

[63]     This claim arises out of the fact that two police officers went to Mr Colman’s property on the day of the incident.  One of these was a female officer, Constable Welsh.   Mr Colman says that he subsequently learned that Constable Welsh had formed the opinion that he was a victim of events that day, and that he had never been a protagonist.  Mr Colman understands that Constable Welsh shared her view with her police colleagues, and that she was ostracised for doing so to the point

where she ultimately resigned from the police.   He maintains that, even now, the police have never advised him about the evidence that Constable Welsh could give. As a result, he claims that the police breached his right under s 24(d) to have adequate facilities to prepare his defence.

[64]     I am conscious that, in determining the present appeals, I must deal with the facts as pleaded by Mr Colman. At first sight, however, these appear to be somewhat at odds with comments attributed to Mr Colman in the transcripts of the hearings before Judge Tompkins and Allan J.

[65]     The transcript of the hearing before Allan J records that Mr Colman told the Judge that he had summonsed Constable Welsh to appear as a defence witness at the original hearing, but by the time the matter was finally heard she had lost the will to support Mr Colman and declined to appear as a witness in his defence.  Similarly, in his closing submissions before Judge Tompkins, Mr Colman referred to the fact that Constable Welsh had previously been prepared to appear as a defence witness but that she was no longer available.

[66]     These  comments  suggest  that  Mr  Colman  was  aware  of  what  Constable Welsh could say, and that he had arranged on at least one occasion for her to be present in Court when the prosecution was due to be heard.

[67]     Putting those matters to one side, there is a fundamental problem with the relevance of Constable Welsh’s evidence.   This is because Judge Tompkins was required to focus on the events that occurred during the incident on 17 December

2007.  In particular, the Judge was required to determine Mr Colman’s culpability at the point at which he uttered the words that led to the charge of using insulting language.

[68]     Constable Welsh was not present at that time, so she could not give evidence directly relevant to the sole issue the Judge was required to determine.  Her views as to whether or not Mr Colman should have been charged, and/or whether he was a victim and not a protagonist, were wholly irrelevant to that issue.  For that reason her

evidence could not have assisted Mr Colman to defend the charge even if she had attended the hearing on 23 April 2009.

[69]     That being the case, there is no tenable basis for the claim that underpins this proceeding. The Judge was therefore correct to strike it out.

CIV-2011-088-264

[70]     In this proceeding Mr Colman contends that Allan J had no jurisdiction to quash his conviction, and then go on to discharge him without conviction.  He argues that the Judge ought instead to have quashed his conviction and made no further order.

[71]     This submission cannot be correct.   Allan J was required to determine the appeal against Mr Colman’s conviction on the charge of using insulting language. As I have already indicated, he first determined that the Judge was entitled to find that the charge had been proved beyond reasonable doubt.  Allan J then revisited the issue of sentence.   He concluded that the offending in question was of a minor nature, and that it was suited to a discharge without conviction where the circumstances of the offender warranted that course of action.  For these reasons he concluded that Mr Colman’s circumstances justified a discharge.

[72]     On any appeal against sentence, the High Court has the power to quash the sentence imposed by the District Court, and to deal with the offender in any other way that the Court imposing sentence could have dealt with the offender on conviction.18    Once Judge Tompkins found the charge proved, he had the power to discharge Mr Colman without conviction under s 106(1) of the Sentencing Act 2002. As a consequence, Allan J had the power to quash the fine that Judge Tompkins

imposed, and to substitute in its place a discharge without conviction.

[73]     For that reason the cause of action based on absence of jurisdiction by this

Court is untenable and cannot possibly succeed.  Judge de Ridder was therefore right to dismiss this proceeding as well.

18 Summary Proceedings Act 1957, s 121(3)(b)(i).

Result

[74]     The appeals are dismissed to the extent that they relate to all proceedings other than CIV-2011-088-195.  The appeal is allowed to the extent that it relates to that proceeding alone.  It is reinstated, and will need to be dealt with in the District Court.

Costs

[75]     Should either party wish to advance an application for costs, a memorandum to that effect should be filed and served within 14 days.  The other party will then have 14 days within which to respond, and the party seeking costs will then have a further 14 days within which to file a brief memorandum in reply.   I will then

determine the issue of costs on the papers.

Lang J

Solicitors:

Crown Law, Wellington

Copy to: Appellant