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…

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.

Continue reading Colman v Attorney-General

Details

AGLC: Colman v Attorney-General [2012] NZHC 1343
Case: [2012] NZHC 1343
Decision Date: 14 June 2012

CaseChat Overview and Summary

John Colman filed nine proceedings in the District Court against the Attorney-General, alleging that the police and the courts had breached his rights to a fair trial. Eight of those proceedings were struck out by Judge de Ridder, and Mr Colman appealed to the High Court. The court had to decide whether the claims in the proceedings were tenable, or amounted to an abuse of process by re-litigating issues that had already been finally decided. The court found that all of the claims were frivolous, except for one, which the court allowed. The court dismissed the appeal in relation to all proceedings except CIV-2011-088-195, which it reinstated and directed to be dealt with in the District Court. The court also noted that if either party wished to apply for costs, they should file and serve a memorandum to that effect within 14 days.

Orders