D v Police HC Napier CRI 2006-441-37

[2006] NZHC 1249

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2006-441-000037

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 October 2006

Appearances: Appellant in Person

R J Collins for Crown

Judgment:      18 October 2006 at 3.00pm

JUDGMENT OF VENNING J

This judgement was delivered by me on 18 October 2006 at 3.00p.m., pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……….

Solicitors:           Crown Solicitor, Napier

Copy to:            N C D  , 18 Salisbury Avenue, Tamatea, Napier

D V NEW ZEALAND POLICE HC NAP CRI 2006-441-000037  18 October 2006

Introduction

[1]      On 17 July 2006 in the District Court at Napier the appellant was convicted on a charge of failing to wear a seat belt.

[2]      After convicting him the Justices of the Peace discharged him.  He seeks to appeal against the entry of the conviction.

[3]      Mr D   represented himself on the appeal  as  he did  in  the

District Court.

Background

[4]      On 21 December 2005 at approximately 12.20 the appellant was driving along Kennedy Road towards Maadi Road.   He did not have his seat belt on at Kennedy Road.  He put his seat belt on just prior to Maadi Road.  When he turned into Maadi Road he was stopped by a police officer and issued with an infringement notice for not wearing a seat belt.

[5]      The infringement notice recorded the time as 12.20 and recorded that the offence occurred in Maadi Road.

[6]      The appellant wrote to the police regarding the offence.  The police declined to waive the infringement notice.  The appellant was then sent a reminder notice that had a due date for payment of 24 February 2006.  The appellant then wrote another letter to the police requesting a Court hearing.   The police responded on 4 March

2006 acknowledging they had received his letter on 22 February but curiously the letter stated:

As your request for a court hearing was received after the due date, it was not able to be actioned.

[7]      A copy of the reminder notice  was then  apparently filed with the Court triggering the procedure under s 21 of the Summary Proceedings Act and s 78B(1)(a) of the Summary Proceedings Act so that the appellant was deemed to have been ordered to pay a fine and costs.

[8]      The appellant then took steps under s 78B(2)(b) to have the fine set aside and to seek the hearing that he had earlier requested.

[9]      The Court subsequently allocated a hearing of the matter.  That hearing took place on 17 July 2006.

[10]     At the hearing two police officers gave evidence for the police, Constable

Brinsdon and Detective McCarthy.   Constable Brinsdon gave evidence that on 21

December he was part of a Napier Team Policing Unit conducting a checkpoint on Maadi Road.   He was standing at the intersection of Kennedy Road and Maadi Road looking out for people not wearing a seat belt as they turned from Kennedy Road into Maadi Road.  He said he saw a Nissan van waiting to turn right into Maadi Road (in error he said there was a give way sign on Kennedy Road at that point when there clearly is not).  He gave evidence that when the driver of the van turned right into Maadi Road he could see him reaching for his seat belt in an attempt to put it on and that he, Constable Brinsdon, radioed this to the other police officer standing down the road in Maadi Road.  His evidence was that he saw the driver go to grab the seat belt and when he had gone to pull it it looked to him as though it had locked at that stage so that the driver had been unable to get it across to click it in.  The constable was unable to identify the appellant as being the driver of the Nissan.

[11]     Detective McCarthy then gave evidence.  He gave evidence of stopping the Nissan van and speaking to the driver.  He confirmed the appellant was the driver. Both officers gave evidence that the incident occurred at about 2.20 p.m. on 21

December.

[12]     The appellant then gave evidence.  He said that:

I came down Kennedy Road.  I realised my seat belt wasn’t attached and I

attached my seat belt, connected it up.  I connected it up while I was stopped

waiting for a vehicle to cross the road in front of me.  I then moved up once he went and I had to wait for traffic again.   I then drove across the intersection.  I observed two police officers crouched down behind a police patrol car – the first police patrol car – there were two of them.

[13]     He denied that he was anywhere near Maadi Road at 2.20 in the afternoon. He said that if the offence notice had been written out for Kennedy Road he would have pleaded guilty but because it was written out in Maadi Road and he had his seat belt on in Maadi Road he had defended the matter.

[14]     The Justices of the Peace then gave a decision.  They said they were inclined to accept the time noted on the infringement notice rather than the evidence of time given by the officers some six months later.   They found the charge proved and convicted and discharged the appellant.

The appeal

[15]     The appellant raises a number of matters on appeal.  They can, however, be distilled into two points.

[16]     First, the procedure taken by the police in lodging the copy of the reminder notice and instituting the procedure under s 78B(1)(a) of the Act when the appellant had written and sought a hearing prior to the lodging of the copy of the reminder notice.  Second, given the conflict between the time noted on the ticket and notice of hearing, which both recorded the time at 12.20 p.m. and the evidence given in Court by the police officers to the effect the time was 2.20, it is the appellant’s case the police evidence was not reliable and should not have been accepted by the Justices of the Peace. The appellant submitted that the credibility of the officers was affected by their evidence as to the time which was in conflict with the ticket issued on the day. He submitted he should not have been convicted on such unreliable evidence.

Decision

[17]     The appeal must be dismissed.   As to the first procedural point, the short point is that the appellant wanted, and got a hearing.

[18]     Provided his letter was received prior to the relevant expiry date, which on the information available to the Court it seems it was, the copy of the reminder notice should not have been filed with the Court to invoke s 21 and s 78B(1)(a) procedure.  The appellant is right about that.

[19]     However,  that  position  was  remedied  by  the  Registrar.    The  Registrar effectively invoked the powers under s 78B(2)(b) and granted a hearing of the matter by setting it down for hearing before the Justices of the Peace.   He did so under s 78B(2)(d).  He was authorised to do so as there clearly was an irregularity in the procedure leading up to the entry of the original fine and costs order.

[20]     Although  s  78B(3)  does  not  give  the  Registrar  authority to  set  aside  or modify any order previously made, the effect of s 78B(4) is that where the Registrar exercises a power under s 78B(2)(d), which he did in this case, then the order made or deemed to have been made against the defendant shall cease to have effect.  The earlier order for fine and costs therefore ceases to have any effect at all at law.  It is effectively a nullity.

[21]     In short, on this first point, the appellant got what he wanted.  He wanted his day in Court to answer the charge.  He had his day.

[22]     The next issue is the disparity between the time noted on the original ticket/ infringement notice issued to the appellant and the evidence of the officers as to the time when they gave evidence at the hearing.  There is also the related matter that the original ticket/infringement notice referred to Maadi Road while the evidence at the hearing by the appellant at least was that he did not have his seat belt on in Kennedy Road, but did have it on by the time he was in Maadi Road.

[23]     The answer to the appeal on this point is first, the particulars of time and place are not ordinarily material ingredients of an offence.   When an issue arises about precise date or time then two questions generally arise.  They are:

•    Is the precise date or time material for any reason, for example, because of a limitation point for filing the information or where there may be an alibi;  and

•   Is the defendant materially prejudiced by any inaccuracy in the alleged date:  H v

Police (1994) 11 CRNZ 632.

[24]     Allegations  as  to  the  place,  in  this  case  Maadi  Road  where  the  alleged offence was committed, are not material either unless they are necessary to identify the incident referred to.  Words naming the place can in fact be surplus and do not affect the validity of an information or indictment:  R v Wallwork [1958] 42 CR App

153.

[25]     There is no issue of alibi in this case.   The appellant accepts he was on Kennedy Road and Maadi Road on 21 December 2005.  There can be no sensible suggestion the appellant was materially disadvantaged in his defence.

[26]     The next factor, which is particularly relevant in this case, is that the evidence at the hearing comprises not only the evidence given by the police officers but also the evidence given by the appellant himself.

[27]     On the basis of the appellant’s own evidence the Justices of the Peace could properly have concluded that on 21 December 2005 the appellant was in a motor vehicle on Kennedy Road without his seat belt being fastened and thus a charge of failing to wear a seat belt on 21 December 2005 at Napier was made out.   The appellant  admitted  not  wearing  a seat  belt  in  Kennedy Road.    From  his  cross- examination it is apparent he accepted that he was spoken to by the officers who gave evidence of stopping his vehicle on 21 December 2005, in particular Detective McCarthy.

[28]     In short, the offence the appellant was convicted of was failing to wear a seat belt on 21 December 2005 at Napier.  The particulars of time and place, be it 12.20 or 2.20 p.m and be it in Maadi Road or, as the appellant accepts in Kennedy Road, are not particulars that are material to the charge.

[29]     The appeal against conviction must be dismissed.

Venning J