D v Police HC Ak CRI 2009-404-310

[2010] NZHC 74

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-310

D

Appellant

v

POLICE

Respondent

Hearing:         8 February 2010

Appearances: Appellant in person

P Van Tiel for respondent

Judgment:      10 February 2010

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.30 pm on Wednesday 10 February 2010

Solicitors/party:

C P D  , 61 Whatipu Road, Huia, Auckland

Crown Solicitor Auckland

D V POLICE HC AK CRI 2009-404-310  10 February 2010

[1]      On 23 June 2009, the appellant was convicted in the North Shore District Court on a charge of exceeding 100 kph in an area governed by a posted speed limit. He was allegedly recorded on radar as having driven at 122 kph.

[2]      The  appellant  did not  appear  at  the  hearing.    The  Justices  of  the  Peace directed him to pay an infringement fee of $170 together with Court costs of $30.

[3]      The appeal is directed at the circumstances in which the hearing proceeded in his absence.  At the time of his apprehension, in the usual way, the appellant was given an infringement notice by a police officer.  Ultimately the appellant faxed to the Police Infringement Bureau a written request for a hearing.   After some correspondence, he was advised on 8 June 2009 of a hearing date of 23 June 2009.

[4]      He had intended to appear on that day.  However, in his notice of appeal and as confirmed from the bar today, Mr D   says that when he awoke on the morning of the hearing he had flu-like symptoms akin to those of swine flu, which had attracted much recent publicity.  Mr D   considered that it would be inadvisable for him to expose others to the risk of infection, and he says he telephoned the North Shore District Court an hour or two prior to the commencement of the Court hearing to advise he would not be able to attend Court.  He says he was told by the person (female) to whom he spoke, that in those circumstances he need not come to Court and she would advise the Justices of the appellant’s position.   He was asked to provide written confirmation as to his state of health by facsimile.   The appellant says he did so, but not immediately.  He has been unable to produce a copy of the facsimile, nor is a copy available on the file of the District Court, which was, Ms Van Tiel advises, sent to this Court on 14 January but appears to have become lost in transit.

[5]      The Justices gave a decision in the following terms:

In the case of Christopher Paul D  , non-appearance of the defendant at

12.50 pm.  Case proven.  Ordered payment at $170 and Court costs at $30.

[6]      It is highly likely that, had the Justices been aware of the appellant’s health difficulties, they would have made some reference to it in their brief decision.  The fact they did not suggests that somehow the appellant’s message did not reach them.

[7]      Ms Van Tiel advises the Court that the District Court records all in-coming calls and maintains a record of the electronic files referred to during the course of such calls.   Her instructions from the Court are that there is no reference on the morning of 23 June 2009 to any call from Mr D  .

[8]      I am given to understand that the case officer who formerly had responsibility for Mr D  ’s file at the District Court is no longer working at the Court and accordingly unavailable to assist.

[9]      Ms Van Tiel suggests there is insufficient documentary material before the Court to support Mr D  ’s contention regarding ill health.  I agree that this Court would have been greatly assisted by the provision of the District Court file, but a decision on appeal must be made on the limited material available.

[10]     This is not major offending, but Mr D   is entitled to his day in Court. There is no reliable material before this Court to rebut his account of the events of 23

June.  In all the circumstances I consider it is necessary in the interests of justice to permit the appellant to raise before the District Court the matters he would have argued had he been present on 23 June.   There is no discernible prejudice to the informant, as Ms Van Tiel accepts.  Nor does she raise a concern about the fact that Mr D   filed this appeal out of time, although not by much.

[11]     Accordingly the appeal is allowed.  The case is remitted to the North Shore

District Court for rehearing.

C J Allan J