Cox v The King - [2025] NZHC 1820

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CRI-2024-418-13

[2025] NZHC 1820

BETWEEN
PHILIP JAMES COX

Appellant

AND

THE KING

Respondent

Hearing:
26 June 2025 further submissions filed 1 July 2025 and telephone

conference on 2 July 2025

Appearances:

P J Cox in person

M W Fulton on 26 June 2025, and G L Collett on 2 July 2025 for Respondent

Judgment:

3 July 2025

JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

COX v R [2025] NZHC 1820 [3 July 2025]

Introduction

[1] On 7 September 2022, Mr Cox was tried in his absence on a charge of breaching the Whitebait Fishing (West Coast) Regulations 1994.1 He was found guilty by Judge Gilbert and was convicted and sentenced to a fine of $1,750.2

[2] He appeals against his conviction and sentence. His grounds of appeal are that he had a good reason for failing to attend court on the day of his trial and that he has a defence to the charge.

[3] Mr Cox’s notice of appeal was filed on 25 November 2024, over two years after the expiry of the statutory period of 20 working days. He requires an extension of the time allowed for filing his notice of appeal.3 I directed that Mr Cox’s application for an extension of time be heard discretely to the substantive appeal.

[4] Shortly before that hearing I inquired as to whether Mr Cox had ever been served with notice of his right to apply for a rehearing.4 It has since been confirmed that he had not. On further reflection the respondent’s position is that Mr Cox should have been given notice of that right. At a telephone conference on 2 July, and in light of the respondent’s position, Mr Cox confirmed that he is content to abandon his appeal in this Court.

[5] That disposes of the appeal. I nevertheless set out my reasons as to why I consider the Judge erred in not directing that Mr Cox be served with a s 124 notice and that the interests of justice require that he be afforded the opportunity to apply for a rehearing.

The allegation

[6] The essential allegation, as detailed by the Judge, is that on 26 September 2019, Mr Cox was observed whitebaiting using screens in excess of three metres in length.

1      Whitebait Fishing (West Coast) Regulations 1994, rr 8(1)(ba) and 19(a); maximum penalty $5000 fine.
2      R v Cox [2022] NZDC 17674.
3      Criminal Procedure Act 2012, s 231(3).
4      Criminal Procedure Act, s 124.

The screens he was using were measured at 4.62 metres in length. At the time Mr Cox had a resource consent permitting screens up to a maximum of 18 metres into the water but a condition of his resource consent required that his structure be built in accordance with the plan attached to it,…

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: [2025] NZHC 1820
Decision Date: 3 July 2025

CaseChat Overview and Summary

The case of Cox v The King involves Philip James Cox appealing his conviction and sentence for breaching the Whitebait Fishing (West Coast) Regulations 1994. Cox was tried and found guilty in his absence by Judge Gilbert and sentenced to a fine of $1,750. Cox's grounds for appeal are that he had a good reason for not attending court and that he has a defense to the charge. Cox argues that he had a reasonable excuse for not attending court, as he was unwell and suspected he had COVID-19. Cox attempted to contact the court twice before 10 am on the day of his trial but was unsuccessful. The court found that Cox was required to be present at the hearing, but the offence charged was a category 1 offence, which permitted the court to proceed with the hearing in Cox's absence.

The legal issue the court had to decide was whether the trial judge was required to direct that a notice be served on Cox under s 124 of the Criminal Procedure Act 2011. The court found that the word "may" in s 124(3) and (4) meant "must" in the context of the statutory scheme. The court concluded that it would be inconsistent with the statutory scheme that the court might determine not to direct that a notice be served when a defendant is tried and found guilty in their absence. The court found that the trial judge erred in not directing that a notice be served on Cox. The court also found that it was in the interests of justice for Cox to be afforded the opportunity to apply for a rehearing. The appeal against conviction and the application for an extension of time to file the appeal were withdrawn. The court directed that the registrar of the District Court at Greymouth serve notice on Cox under s 124(3) of the CPA, advising Cox that he had been found guilty of the whitebaiting charge in his absence and that if he wished to apply for a retrial under s 125 of the Act, the application must be filed no later than 15 working days after the date of service of the notice.

Orders