D v Police HC Blenheim CRI 2005-406-4

[2005] NZHC 3

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2005-406-00004

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 August 2005

Appearances: AJD   for Appellant

G Marshall for Respondent

Judgment:      30 August 2005

ORAL JUDGMENT OF MILLER J

[1]      Ms D   was convicted in the District Court at Blenheim of failing to keep wholly to the left of a no-passing line when passing a vehicle other than a bicycle, contrary to Regulations 8(6) and 136(E) of the Traffic Regulations 1976. She appeals against both conviction and the fine of $150 with $30 costs.

[2]      The appeal is brought on the ground that Ms D   was denied a fair hearing both as to conviction and sentence.   Specifically, the Justices denied an application  for  adjournment  brought  on  the  grounds  that  Ms  D    was overseas  and  then  proceeded  by  way  of  formal  proof  without  allowing  her representative, Mr D  , to cross-examine the police officer.  Mr D 

D  V NEW ZEALAND POLICE HC BLE CRI 2005-406-00004  30 August 2005

is Ms D  ’s father.  Although qualified as a solicitor in Scotland, he does not hold a New Zealand practising certificate.  He appears before me without objection from Mr Marshall.

[3]      The infringement notice was issued following an incident on 26 August 2004. It is said that Ms D   was following a truck down a hill and pulled out looking for an opportunity to pass on double yellow lines.   She crossed the lines. The offence notice records that there was no visibility around the corner, and that the incident occurred in a 100 kph zone.

[4]      The infringement was duly served and Ms D   requested a hearing through Mr D  .  The matter was called in the District Court at Blenheim on 8 October 2004 and was set down for a defended hearing on 16 February 2005.  That hearing was adjourned at Mr D  ’s request, as he had a commitment in Wellington.  A new hearing date of 20 April 2005 was set.

[5]      On  12  April,  Mr  D    wrote  to  the  Court  seeking  a  further adjournment until the end of the year on the ground that Ms D   would be in the UK until at least December 2005.   This application was not granted on the papers, and Mr D   did not appear on 20 April.  On that date the Court must have dismissed the application because the matter was adjourned until 18 May for formal proof.

[6]      On 18 May Mr D   appeared and sought an adjournment so that a defended hearing could be held.  The police opposed the application, and the Justices declined it.  They then proceeded to dispose of the matter on the basis of a very brief affidavit sworn by the officer concerned, Constable Rendel.   Mr D   submitted that the officer should be present to give evidence as he wished to cross- examine him, but the Justices insisted on proceeding by way of formal proof.  Mr D    was  allowed  to  make  submissions,  but  the  Justices  found  that  the affidavit was sufficient to establish the offence.

[7]      In  this  appeal,  Mr  D    complains  that  the  Court  denied  Ms D   a hearing by refusing his application for an adjournment.  He submitted

that not only was Ms D   in the UK until December, but her three defence witnesses were students at various universities who would find it difficult to attend Court in Blenheim during term time.   I am unable to accept this submission.   Far from  being  denied  a  hearing,  Ms  D    was  given  an  opportunity  for  a defended hearing at a date suitable to her.   She first sought and was granted an adjournment on the grounds of convenience to Mr D  , and then chose to go overseas for an extended period rather than appear at the adjourned hearing date of 20 April 2005.   The Court is not obliged to vacate fixtures repeatedly to suit the travel plans of a defendant.

[8]      Mr D  ’s second ground is of more substance.  He complains that the Justices insisted on conducting the matter on a formal proof basis notwithstanding that he appeared for Ms D   and sought to cross-examine the officer.   He says the defence has substance.  In particular, he says the officer’s conduct had been the subject of a complaint and led to him being required to issue a written apology to Ms D  .  Whether this point is accurate and relevant, is not for this court to say.

[9]      Mr Marshall contended that Mr D   had no standing to force the Justices to conduct the defended hearing on 18 May.  The matter could have been adjourned to another date however, to allow Ms D   to appear by counsel. As Mr Marshall very properly accepted, the Court had allowed Mr D   to represent her until that point.  Indeed, the Justices allowed him to make submissions on 18 May.

[10]     It is one thing to decline an application for an adjournment.   It is quite another to then insist on hearing the matter by way of formal proof notwithstanding that the defendant wishes to put the prosecution to proof.   The proper course in circumstances where the appellant appeared by her representative and sought to defend the matter was to further adjourn it so that the officer could give evidence and Mr D   could brief counsel.  If the Court meant to insist on Ms D   appearing in person or by counsel, it ought to have given her an opportunity to engage counsel in the circumstances.

[11]     The appeal is allowed.   The conviction and sentence are set aside and the

matter will be remitted to the District Court for rehearing.

Solicitors:

A J D  , Nelson for Appellant

Crown Solicitors Office, Nelson for Respondent

F Miller J