Cox v The King
[2025] NZHC 1820
•3 July 2025
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, which required a post and walk board structure. On the day in question, Mr Cox did not have any walk boards attached to his structure. Consequently, the structure was not authorised by resource consent. His activities were considered to be unlawful because the screens in use exceeded three metres.
The lead up to trial and the failure to appear
[7] On 19 February 2020, Mr Cox was charged with the breach of the whitebaiting regulations and with obstructing a warranted officer acting in the execution of duties conferred by the Conservation Act 1987. The obstruction charge carries a maximum penalty of two years’ imprisonment and/or a $100,000 fine.5
[8] As acknowledged by the Judge in dismissing Mr Cox’s application for a stay on the grounds of delay, the charges had a long and difficult history. Mr Cox was self-represented throughout. There were delays in his first appearance due to Covid-19. On 15 July 2020, Mr Cox pleaded not guilty and elected trial by jury. A case review hearing was held on 25 August 2020. A pre-trial callover was held on 12 November 2020 and adjourned to allow Mr Cox to receive disclosure material. On 12 February 2021, the prosecution was set down as a back-up trial in the week of 3 May 2021. The trial was not reached in that week. On 3 May 2021 and following discussions with Judge Crosbie, Mr Cox indicated he was considering applying for a stay due to the delays. That application was scheduled for a hearing on 15 June 2021 but had not been filed and so was adjourned until 17 August 2021. When Mr Cox had still not filed the application, timetabling directions were made. In August and September 2021, the country was either at level 3 or level 4 lockdown due to Covid. By 11 October 2021, Mr Cox had filed the stay application.
[9] Thereafter, there were ongoing discussions between Mr Cox, the Crown and, on occasions, different Judges in an attempt to resolve the prosecution. A resolution
5 Sections 41(a) and 43C(3).
was almost reached. That required Mr Cox to write an apology and undertake a day of community service. Mr Cox was not prepared to do either.
[10] Eventually the case was set down for a jury trial in the week of 5 September 2022. A telephone conference between Mr Cox, the Crown and Judge Gilbert, as the trial Judge, took place on 18 August 2022. As recorded in the decision dismissing Mr Cox’s stay application,6 during that telephone conference the Judge spoke with Mr Cox about the difficulties for a lay person self-representing at a jury trial and particularly so when there is complexity to the legal framework of the charges. The Judge referred to the additional time to complete a jury trial as opposed to a Judge-alone trial. The Judge told Mr Cox there was a possibility that having heard and dismissed Mr Cox’s stay application, there may be insufficient time in the scheduled trial week for the jury trial to be heard. The Judge recorded that during the telephone conference Mr Cox confirmed that he would vacate his jury trial election and proceed to a Judge-alone trial. The Judge described Mr Cox as “keen to get the matter dealt with as soon as possible”.7
[11] It was less than three weeks later, on 7 September, that Mr Cox failed to appear at his trial.
[12] In his absence, the Judge considered and declined Mr Cox’s application for a stay of proceedings. Following that decision, the prosecutor sought leave to withdraw the charge of obstruction. The Judge, in his decision granting leave to withdraw that charge, described the prosecutor’s application as reflecting a pragmatic decision, recognising that the rules for proceeding in the absence of a defendant are less stringent for a category 1 offence than a category 3 offence.8
[13] In a minute of the 7 September, the Judge considered whether to hear the charge in the absence of Mr Cox. The Judge said, “there is no reasonable excuse (as far as I can tell) for Mr Cox having failed to show up”. The Judge referred to the 18 August telephone conference and Mr Cox’s assurance that he would attend the trial. The Judge
6 R v Cox [2022] NZDC 17618.
7 R v Cox, above n 6 at [3].
8 R v Cox [2022] NZDC 17620 at [2].
observed that Mr Cox had failed to communicate any reason for his non-appearance. Having regard to what were described as very dated charges and that two prosecution witnesses were in court, the Judge determined that it was appropriate to proceed to hear the charge in Mr Cox’s absence.
[14] The Judge heard evidence and in an oral decision found Mr Cox guilty and imposed sentence.
Material relevant to delay
[15] Mr Cox’s appeal against conviction was not filed until November 2024. In accordance with directions issued by this Court, evidence was filed by both Mr Cox, and his partner with reply evidence from deputy registrars of the Greymouth District Court addressing the delay.
[16] Mr Cox deposes that on 7 September he was unwell and although testing negative, believed he had Covid-19. He says he telephoned the Court twice before 10 am on the day of his trial. Both calls went to answerphone. Mr Cox’s evidence is confirmed by his partner, Ms Chandler.
[17] Mr Cox deposes that about a week after the sentencing, he went to the Greymouth District Court to obtain the appropriate papers to file an appeal but was told they were not available at the Court. He says he telephoned the Ministry of Justice and was forwarded incorrect documentation that he completed but omitted to copy or sign. He again contacted the Ministry of Justice and was forwarded further documentation that he completed and returned to the Greymouth District Court on 23 May. Two days later he received a letter from the Court thanking him for his application to dispute a fine and advising that the application could not be processed because the fine had been imposed in Court.
[18] Ms Allers, a deputy registrar at the Greymouth District Court, annexes to her affidavit Mr Cox’s application to dispute a fine dated 23 May 2023 and the response sent from the central registry of the District Court. Within the application to dispute a fine and on the page headed “confirm the reason you believe the prosecuting authority made a mistake” Mr Cox has relevantly handwritten as follows:
Request to revisit Court case: DOC v P J Cox, Whitebait Regulations
I am writing this request because on 7 September 2022, I was due to appear before the Court, I rang the Court (Greymouth) stating that I had suspected Covid-19 and that I could not attend Court on that day. I rang twice, leaving messages, which were apparently not received by the Judge. Despite this I was convicted of a charge of breaching whitebait regulations. I am Not Guilty of these charges.
…
…I am presenting this request months after 7 September 2022 because the Court sent the result of the last hearing (in my absence) to the wrong address. I also ask that Judge Crosby (sic) preside over the case in question—which he has done twice before. I am self-representing and I have not had my facts and proof heard by the court as yet. I look forward to hearing from you in the near future.
Yours faithfully,
P J Cox
[19] Ms Cowie, another deputy registrar at Greymouth, deposes that in early September 2023 Mr Cox attended the Greymouth District Court to discuss the case. She recalls telling him that he had not been given the correct forms and that he needed to file an appeal. On 15 September 2023, Ms Cowie consulted the Judge. She thinks she would have contacted Mr Cox shortly after that date. She remembers telling Mr Cox that he would need to “apply to file an appeal out of time and file an appeal” and that she had the correct documents for him that he could pick up from the Court. Ms Cowie recalls telling Mr Cox that she would send the disputed fine form along with the correct documents to the High Court as she could see that Mr Cox had initially been given the wrong forms. She had the correct forms printed on her desk waiting for him to pick up for months. She cannot recall whether he did so.
[20] At the appeal hearing on 26 June 2025, Mr Cox explained that he is a deep-sea fisherman and was away fishing for months at a time throughout 2023 and 2024.
[21] On 30 August 2024 Mr Cox filed a notice of application for leave to appeal. On 24 October 2024, Osborne J issued a minute directing that Mr Cox file a notice of appeal seeking an extension of time by 4 November 2024. Mr Cox failed to do so and on 13 November 2024 his appeal was deemed abandoned. On 25 November 2024, Mr Cox filed a second notice of appeal.
The right to apply for a rehearing
[22] Mr Cox’s “request to revisit Court case” letter prompted my minute inviting the parties to address ss 124(3) and (4) of the Criminal Procedure Act 2011 (CPA) dealing with notice to a defendant tried in their absence, of the right to apply for a rehearing.
[23] At the hearing on 26 June, Ms Fulton, for the respondent, confirmed that, further inquiries of the Greymouth District Court indicated that the Court had not issued a s 124 notice to Mr Cox. Ms Fulton sought the opportunity to confirm those inquiries and to file further submissions addressing first, whether notice was mandatory or discretionary and secondly, if not mandatory whether the Judge erred in not directing that notice be given to Mr Cox.
[24] On 1 July, Ms Collett, for the respondent, filed a brief further submission and a second affidavit from Deputy Registrar Cowie. Ms Cowie deposes that she has now listened to the audio record of the 7 September hearing and confirms that the Judge did not refer to s 124 of the CPA. The Crown concede that notice was not given.
[25] Ms Collett accepts that Mr Cox should have been given notice and that until notice is given and the 15 working day time frame expires, he is entitled to apply for a rehearing.
Legal Framework
[26] The hearing on 7 September proceeded under s 119 of the CPA. That provision permits the Court to proceed with a hearing in the absence of the defendant if the offence charged is a category 1 offence and the defendant was required to be present. Mr Cox was facing a category 1 offence.9 Section 118(1) provides that one of the circumstances where a defendant must be present at a hearing is if he or she “has been remanded in custody, or on bail or at large, to attend that hearing”. It is not disputed that Mr Cox was remanded at large to the trial date of 7 September 2022.
9 Criminal Procedure Act 2011, s 4.
[27] Section 124 provides the procedure when a charge is heard in the absence of the defendant. In the case of a category 1 offence the charge against the defendant may be proceeded with up to and including sentencing unless section 119(4) or (5) applies.10
[28] Of particular relevance, ss 124(3) and (4) provide for a notice to be served on the defendant. I set those sections out in full:
Procedure when hearing proceeds in absence of defendant
…
(3)If a person is found guilty in his or her absence at a hearing at which the defendant is required by section 118 to be present, the court may—
(a)direct that a notice be served on the defendant advising the defendant—
(i)that he or she has been found guilty in his or her absence; and
(ii) of the date on which he or she must appear for sentencing; and
(iii)that, if he or she wishes to apply for a retrial under section 125, the application must be filed no later than 15 working days after the date of service of the notice; or
(b)if the person is liable on conviction to a sentence of imprisonment, issue a warrant to arrest the defendant and bring him or her before the court for sentencing.
(4)If a person is sentenced in his or her absence for a category 1 offence at a hearing at which the defendant was required by section 118 to be present, the court may direct that a notice be served on the defendant advising the defendant that—
(a)he or she has been sentenced in his or her absence; and
(b)if he or she wishes to apply for a rehearing under section 126, the application must be filed no later than 15 working days after the date of service of the notice.
Section 125 governs the rehearing application. It provides:
Retrial if defendant found guilty in his or her absence
10 Section 124(2)(d)(i). Neither s 119(4) or (5) apply as a community based sentence was not imposed.
(1)A defendant who is found guilty following a trial that proceeded in his or her absence may apply to a court for an order granting a retrial of the charge.
(2)The application—
(a)must be filed in the court in which the defendant’s trial was held; and
(b)must be filed no later than 15 working days after the date on which—
(i)a notice is served on the defendant under section 124(3)(a); or
(ii)the defendant appears in court pursuant to a warrant issued under section 124(3)(b); and
(c)must be determined by the judicial officer who presided over the trial or, if that is impracticable, any Judge.
(3)If the application is on the ground described in subsection (7)(b), it must be supported by—
(a)an outline of the defence on which the defendant intends to rely if a retrial is granted; and
(b)a formal statement from each witness who the defendant intends to call.
(4)The Registrar of the court must cause a copy of the application to be served on the prosecutor.
(5)The prosecutor may file a written response to the application no later than 15 working days after being served with a copy of it.
(6)The court may consider the application on the papers or at an oral hearing.
(7)The court may order a retrial of the charge if—
(a)the court is satisfied that—
(i)the defendant was notified of the trial and had a reasonable excuse for non-attendance at the trial, but that reasonable excuse was not known to the court at the time of the trial; and
(ii)it is in the interests of justice; or
(b)regardless of whether the defendant had a reasonable excuse for non-attendance, the court is satisfied that the defendant had a defence that would have had a reasonable prospect of success if he or she had attended the trial.
(8)Despite subsection (7), the court must order a retrial if satisfied that the defendant was not notified of the trial.
(9)A formal statement provided to the court in accordance with subsection (3)(b) is to be treated as evidence on oath given in a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).
[30] A defendant who is unsuccessful in applying for a rehearing does not have a right of appeal against that decision11 but will have the general right of appeal against the original conviction with time running from the date of the decision to decline the application for rehearing.
Does “may” mean “must”?
[31] The first issue I invited the parties to address was whether a direction that a s 124 notice be served is mandatory or discretionary. Counsel have not identified any case law on point. In her submissions, Ms Collett highlights that the language of s 124 would indicate that the court exercises a discretion but submits “that the section is likely intended to be read as a mandatory requirement”.
[32] Without reference to authority, Adams on Criminal Law assumes that notice will be given:12
There is generally no ability for the Court or Registrar to issue a warrant for a category 1 offence to compel the defendant’s attendance in court. Instead, the court may proceed without the defendant, with the defendant then notified of the outcome in accordance with a notice under s 124(3) or 124(4).
[33] Section 124(3) provides that the court “may” direct that a notice be served on the defendant or, if the person is liable to a sentence of imprisonment, issue a warrant to arrest. Section 124(4) again provides, in relation to a category 1 sentencing that the court “may” direct that a notice be served on the defendant.
11 Green Transport Ltd v Police [2023] NZHC 990 at [29].
12 Mathew Downs (ed) Adams on Criminal Law — Criminal Procedure (online ed, Thomson Reuters) at [199.02].
[34] The word “may” is usually permissive or empowering.13 But in some situations when read in context, “may” means “must”.14 A relevant consideration as to whether “may” means “must” in s 124(3) and (4) is the statutory scheme.
[35] Section 124 falls within Part 5 of the CPA which deals with the conduct of proceeding and relevantly, the powers of the court when a defendant does not appear. For a category 1 offence, the court may proceed with a hearing in the absence of a defendant without inquiring as to the reason why the defendant failed to appear.15 For a category 2, 3 or 4 offence, the court must inquire as to whether the defendant has a reasonable excuse for non-attendance and must not proceed to trial in the absence of the defendant if satisfied that to do so would be contradictory to the interests of justice.16
[36] For a category 1 offence, the court will not necessarily have inquired or otherwise known of any explanation for a defendant’s non-appearance. The mechanism by which a defendant who seeks to advance a reasonable excuse for non-appearance and, absent a reasonable excuse, to advance a meritorious defence to the charge is s 125. That section is prescriptive and requires a defendant found guilty in their absence to file an application for a retrial no later than 15 working days after the date on which they are either served with a notice or appeared in court under a warrant issued under s 124. If a notice has not been served or a warrant not issued, time is not running. Relevant to Mr Cox’s circumstances, a defendant cannot apply for a rehearing unless served with notice under s 124.
[37] In my view, 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. To do so would deny the defendant the right to apply for a rehearing. Reading “may” as “must” for the purposes of ss 124 (3) and (4), would overcome that consequence.
13 B v Waitemata District Health Board [2017] NZSC 88, [2017] 1 NZLR 823 at [31].
14 Above n 14 at [31].
15 Criminal Procedure Act 2011, s 119(2).
16 Section 122(2), (3) and (4).
[38] The issue is not squarely raised on this appeal, and I have not had the benefit of full argument. But in my view “may” does mean “must” in ss 124(3) and (4).
[39] If I am wrong and the power to direct the service of a notice is discretionary, it is difficult to conceive of circumstances where a Judge might resolve not to give notice to a defendant who has been tried in their absence that they have a right to a rehearing and that an application must be filed within 15 working days. Natural justice would, other than in very rare circumstances (and it is difficult to conceive of a compelling example), require the court to direct that notice is given. A failure to do so will deny the defendant of the right to apply for a rehearing.
[40] It is now accepted that the Judge did not direct that a notice be served on Mr Cox. I think it most likely the Judge did not turn his mind to s 124. I am satisfied that the failure to so do was in error. The respondent’s concession that the Judge should have directed that a notice be served was, in my view, appropriate.
[41] The Judge was aware that Mr Cox had, since the charge was first laid, actively engaged with the prosecution. He had made multiple appearances in the Greymouth District Court. He had complained about the delays in progressing his case. He had filed an application for stay. He had participated in a telephone conference with the trial Judge on 18 August, just three weeks prior to the Judge-alone trial, and, primarily in order to secure an early trial date, had vacated his election of a jury trial.
[42] In those circumstances it is surprising that when Mr Cox did not appear on 7 September that no inquiries were made as to why he had failed to appear. The registry had ready access to Mr Cox’s cell phone. His address was known to the Court and the prosecution. Mr Cox has deposed, and there is no reason not to accept his evidence, that on 7 September he was unwell, suspected he had Covid, and that he twice called the Court to advise that he was unable to appear.
[43] Mr Cox’s failure to appear was quite at odds with his genuine interest in having the case heard promptly. This was not a defendant who the Court might think was avoiding the determination of charges.
[44] In those circumstances I am quite satisfied that having determined that it was appropriate to try Mr Cox in his absence, the Judge was required to direct that a notice under s 124 was served on Mr Cox.
[45] I am comfortably persuaded that if a s 124 notice had been served, Mr Cox would have promptly applied for a rehearing. The notation Mr Cox made on the notice to dispute fine form that had been mistakenly sent to him in lieu of a notice of appeal or application for a rehearing, clearly indicated that he was seeking a rehearing. In the meantime, over two years has passed. If notice had been promptly served it may have been possible to confirm, by independent evidence, Mr Cox’s explanation that he made two calls to the Court advising that he was unwell and could not attend on the day. That evidence is no longer available and as Ms Cowie has responsibly observed, she cannot say definitively whether he did or did not call the Court that day.
[46] I have avoided commenting on the merits of Mr Cox’s defence. What is clear is that he has always denied that he was engaging in the act of fishing on the day of the alleged offence and has always sought to have his day in court.
Result
[47] I record that the application for an extension of time to file the appeal and the appeal against conviction are withdrawn.
[48] I direct that the registrar of the District Court at Greymouth serve notice on Mr Cox under s 124(3) of the CPA advising Mr Cox:
(i)that he has been found guilty of the whitebaiting charge in his absence; and
(ii)that if he wishes 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.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Copy to: P J Cox
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