Davies (Daniel) v Police HC Whangarei Cri-2006-488-56
[2007] NZHC 376
•26 April 2007
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DAVIES v POLICE
High Court, Whangarei (CRI-2006-488-56; 10 October 2006, 30 March; CIV-2007-488-20) 26 April 2007
Miller J
Criminal procedure — Abuse of process — Delay — Stay of proceedings granted
— Unacceptable delay between defended hearing and delivery of judgment — New Zealand Bill of Rights Act 1990, s 25(b).
Offences — Theft — Theft of internet usage — Sufficient under s 223(d) Crimes Act
1961 for police to prove property had some value, not necessarily precise value — Internet usage measured in megabytes — Information needs to distinguish quantity of data from its content — Internet usage that exceeded monthly data cap was property, because of contractual obligation to pay for it — Crimes Act 1961, ss 2,
217, 218, 219, 223, 223(d), 331.
The appellant had downloaded music files and pornography at work using his employer’s internet facilities. He was convicted of stealing internet usage to the value of $205. Following his defended hearing, there was a delay of 11 months before the District Court Judge’s decision was delivered. The appellant was on bail during this period, and was prejudiced in his ability to apply for work as a security guard.
Held, (1) the value of the property stolen is a particular of the charge. Its significance is that the police must show that the value meets the relevant threshold, which under s 223(d) Crimes Act 1961 was property the value of which does not exceed $500. The police therefore did not need to prove the precise value. It was sufficient for them to prove that the internet usage had some value. (para 29)
(2) The phrase “internet usage” describes data transmitted to and from a customer’s internet address using its internet service provider’s network. The quantities of data are measured in megabytes. The information could perhaps have been framed more precisely on this point, but as expressed it sufficiently identified what had allegedly been stolen and helpfully distinguished the quantity of data, with which the charge was concerned, from the actual content conveyed eg, music or images. (para 33)
(3) The appellant submitted that the only megabytes belonging to his employer were the ones they had prepaid Telecom for. Infinite capacity might have been available, but the appellant’s employer still had a contractual obligation to pay for usage that exceeded its monthly limit, making it property in which the employer had an interest. (para 34)
(4) Although this case raised some novel legal issues they were narrow and the facts were concise. There was no evidence that the delay in issuing a decision was attributable to pressure of work in the District Court. As the appeal against conviction lacked merit, the public interest in bringing offenders to justice counted against a stay. The delay was inexcusable, particularly in light of the fact that its cause was attributable to the trial Judge. (paras 58-61)
Cases referred to
Colonial Bank v Whinney (1886) LR 11 App Cas 426; [1886-90] All ER 468 (HL)
Du v DC at Auckland (2005) 22 CRNZ 505; [2006] NZAR 341
Graham v DC at Blenheim [2007] NZAR 32
Martin v DC at Tauranga [1995] 2 NZLR 419; (1995) 12 CRNZ 509; (1995)
1 HRNZ 186 (CA)
Police v Auckland DC (1999) 5 HRNZ 419
Police v Dongmei He [2004] DCR 414
R v Harmer 26/6/03, CA324/02; CA352/02
R v Koura [1996] 2 NZLR 9; (1996) 13 CRNZ 463; (1996) 3 NZ ConvC 192,533 (CA)
R v Manawatu 10/11/06, CA111/05; CA112/05
R v Morin [1992] 1 SCR 771; (1992) 71 CCC (3d) 1; (1992) 134 NR 321 (SCC)
R v Wilkinson [1999] 1 NZLR 403; (1998) 16 CRNZ 179 (CA)
Appeal
Appeal against conviction and sentence.
D M Grindle for appellant
M B Smith for police
A M Powell for Attorney-General
MILLER J (reserved):
Introduction
[1] Mr Davies downloaded music files and pornography at work using his employer’s internet connection and computer. He was charged with stealing internet usage the property of his employer and valued at $205.
[2] The information covered the period 14 January 2004 to 13 February 2004. Mr Davies was convicted by Judge Moore on 30 June 2006 following a hearing on 5 and 8 July 2005 (Police v Davies 30/6/06, Moore J, DC Whangarei CRN4088024095). A few days before the decision was issued, Mr Davies moved for a stay on grounds of delay. That was denied by Judge McDonald, who subsequently convicted Mr Davies and ordered him to pay $130 Court costs, imposing no further penalty in recognition of the delay between hearing and conviction.
[3] Mr Davies appealed, saying that internet usage in the circumstances of this case was not property capable of being stolen; that his use of the internet did not amount to using property with intent to deprive the owner permanently of it; that there was no evidence to show that the dishonest taking of internet usage was contemporaneous with intent to deprive the owner permanently of it; that there is new evidence the gist of which is that he may have had permission to download
material for his personal use; and that Judge McDonald ought to have stayed the prosecution in response to the delay in delivery of Judge Moore’s decision.
[4] After the appeal was argued on 10 October 2006, I agreed to adjourn the matter (with Mr Davies’ consent) while an application for judicial review was filed and legal aid obtained. That step was taken because judicial review is arguably the more appropriate means to quash a conviction for delay. It allowed the Attorney-General to file evidence about the reasons for delay, although in the event he chose not to do so, and allowed Mr Davies to file an affidavit deposing to the effect of delay upon him. A fixture was then assigned at the earliest available date in Wellington.
Factual background
[5] Mr Davies began work with the Poster Faktory Ltd in 2000, initially as a gardener but eventually as a graphic design artist. The directors of the company were Ian Clapperton, Ross Hamilton and Gary Jeeves. At the beginning of 2004, Mr Jeeves and Mr Davies decided to leave the Poster Faktory and set up a competing business. Mr Clapperton was warned of this and on Sunday
14 February, one day before Mr Davies planned to resign, Mr Clapperton and his wife Yvonne seized Mr Davies’ computer and had it analysed by a computer expert, Mr Ducrot. They were looking for evidence that the Poster Faktory’s intellectual property may have been taken. What they found were music files and pornography hidden under a sub-directory, along with a programme called I-Mesh designed for internet data-sharing and capable of being operated so that downloading was not visible to someone viewing the computer screen. When confronted on Monday 15 February, Mr Davies admitted that he had downloaded such files.
[6] The Poster Faktory’s internet service provider was Telecom. Access was provided under a contract which, unfortunately, was neither produced nor much explained in evidence. It was established, however, that the Poster Faktory paid a flat monthly fee in return for which it could download and upload a number of megabytes of data. This total usage was described as a data cap, somewhat misleadingly for there was no relevant contractual limit on the firm’s usage. Rather, the Poster Faktory would be invoiced for the excess on a per-megabyte basis if it exceeded that amount. It is apparent that the per-megabyte rate for excess usage was higher than the rate implicit in the monthly data cap (Mr Clapperton described it as a per unit penalty), but the evidence did not establish by how much. Each month the firm could vary the data cap for the succeeding month.
[7] For the billing month between 14 January 2004 and 13 February 2004, the firm uploaded and downloaded a total of 3,016.87Mb. At the time, the monthly data cap was 1800Mb. For the excess it was billed an additional $208.72.
[8] Mrs Clapperton complained to the police on 28 June 2004, and they executed search warrants at Mr Davies’ home on 11 September. The information was laid on 16 September 2004. It was coupled with informations alleging two minor cannabis offences, an appeal against sentence in respect of which was abandoned before me.
[9] The following chronology was used by Judge McDonald:
Date Event
| 14 January 2004 to 13 February 2004 | Theft. |
| 11 September 2004 | Police execute search warrants in relation to theft charge and locate drug paraphernalia. |
| 16 September 2004 | Informations sworn and filed in the Whangarei District Court. |
| 16 September 2004 | First appearance in the Whangarei District Court. |
| 28 September 2004 | Not guilty pleas entered in respect of all three charges. |
| 16 November 2004 | Further remand. |
| 16 February 2005 | Defended hearing set in respect of all three charges for 6 April 2005; 4 hours estimated. |
| 6 April 2005 | Fixture vacated as “Police not notified of fixture for 6 April 2005”. New fixture set for 6 May 2005. |
| 11 April 2005 | Fixture vacated. It is unclear from the criminal record sheet as to how a fixture for 11 April 2005 was allocated as on 6 April a fixture for 6 May 2005 had been allocated. Theft charges severed from drug charges. |
| 11 May 2005 | Fixture vacated on application by defendant as counsel, Mr Grindle, unavailable as was in Environment Court over the entire week. |
| 5 July 2005 | Defended hearing in respect of theft charge commenced before Judge Moore; part-heard. |
| 8 July 2005 | Defended hearing completed. Judge Moore reserved his decision. Written submissions to be filed. |
| 29 July 2005 | Defence to file written submissions. |
| 19 August 2005 | Police to reply to defence’s written submissions. |
| 29 August 2005 | All informations called “pro-forma” date awaiting decision. |
| 19 December 2005 | Pro forma date awaiting decision. |
| 1 March 2006 | Pro forma date awaiting decision. |
| 16 March 2006 | Letter from Mr Grindle to Court inquiring about progress with decision. |
| 1 May 2006 | Pro forma date awaiting decision. |
| 1 June 2006 | Pro forma date awaiting decision. |
| 21 June 2006 | Application for stay of proceedings filed by defendant. |
| 30 June 2006 | Reserved judgment delivered by Judge Moore. |
[10] As Judge McDonald recorded, Mr Grindle also sought advice from the Registry informally on a number of occasion as to when Judge Moore’s decision would be delivered.
[11] In a judgment of 15 August 2006, Judge McDonald found there was a breach of Mr Davies’ right to trial without undue delay under s 25(b) of the New Zealand Bill of Rights Act 1990, but he considered it would be disproportionate to order a stay given that the delay was in the giving of the
decision following a defended hearing. Rather, Mr Davies’ remedy lay in recording the breach and making an allowance in sentence.
The appeal against conviction
[12] The information was laid under s 223(d) of the Crimes Act 1961, which provides that everyone who commits theft is liable to imprisonment to a term not exceeding 3 months if the value of the property stolen does not exceed $500.
The legislation
[13] The Act’s theft provisions were amended as from 1 October 2003. In R v Wilkinson [1999] 1 NZLR 403; (1998) 16 CRNZ 179 (CA), the Court of Appeal had examined the question whether a chose in action was capable of being stolen, and held that it was not because, although it fell within the definition of property in the Crimes Act 1961, it was not movable in the sense contemplated by s 217. The Legislature responded by amending the Act. The former s 217 was removed and the definition of “property” was expanded to include money and electricity.
[14] Theft is defined in s 219:
(1) Theft or stealing is the act of,—
(a) dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or
(b) dishonestly and without claim of right, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.
(2) An intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that—
(a) the property cannot be returned to any owner in the same condition; or
(b) any owner is likely to be permanently deprived of the property or of any interest in the property.
(3) In this section, taking does not include obtaining ownership or possession of, or control over, any property with the consent of the person from whom it is obtained, whether or not consent is obtained by deception.
(4) For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
[15] “Property”:
includes real and personal property, and any estate or interest in any real or personal property, [money, electricity,] and any debt, and any thing in action, and any other right or interest. [Section 2 “Interpretation”]
[16] Ownership of property is addressed in s 218:
(1) For the purposes of this Part, a person is to be regarded as the owner of any property that is stolen if, at the time of the theft, that person has—
(a) possession or control of the property; or
(b) any interest in the property; or
(c) the right to take possession or control of the property.
[17] An act is done dishonestly if it is done without a belief that there was express or implied consent to, or authority for, the act from a person entitled to give such consent or authority: s 217.
[18] In the wake of the 2003 amendments, the Court need not determine whether the thing allegedly stolen is property capable of being stolen; all that is necessary is to establish that the thing is property for purposes of s 2 and that the elements of the offence in s 219 are made out.
Whether Mr Davies downloaded music and pornography during the period addressed by the information
[19] Mr Grindle contended that the police failed to prove that Mr Davies downloaded music and pornography files during the monthly billing period covered by the information. He did not dispute that the files were found on a computer used only by Mr Davies, but he submitted that the music files found may not have been downloaded at all (that is, they may have been extracted from a compact disc or some other storage medium), and argued that there was no evidence establishing when the pornography was downloaded. Mr Ducrot could not say when the files found were downloaded, or even whether they were downloaded.
[20] Judge Moore rejected these arguments. He found that the evidence fell well short of establishing Mr Davies’ use for prohibited personal purposes, noting that several other employees also used the internet and that Mr Davies had permission to use it for a specific personal purpose (researching a car immobiliser). But the Judge was satisfied that he downloaded music and videos in the month preceding his dismissal on 15 February.
[21] That conclusion was open to the Judge. As Mr Smith pointed out, there is abundant evidence that Mr Davies had downloaded music and pornography files recently. Mr Davies admitted that to the Clappertons when interviewed on Monday
15 February. He then made admissions to the police, which were recorded in a notebook statement. He agreed that he had admitted to Mr Clapperton that he had downloaded pornography and music videos, usually in his lunch-hour but sometimes in work time. He admitted that he used the I-Mesh programme to download pornography. When asked whether his internet use increased as he became aware that he was going to leave the Poster Faktory, he responded “I think in the last month I may have gone over slightly”. It is apparent from the statement that that was a reference to the data cap, which it was his habit to monitor via a Telecom website. He also acknowledged that “I did download more excessively in that month more than usual”, and when asked whether by “download” he meant pornography and music videos he responded that some of it would have been but a lot of it was work.
[22] Also tending to support the recency of his activities was the nature of some of the files found on the computer. The pornography files were partly downloaded and hidden in a directory holding recent files. The I-Mesh programme is capable of starting and stopping files from where the downloading left off, and until the downloading is complete it stores each file in its partial state in a temporary folder. Of some relevance also is the firm’s experience following Mr Davies’ dismissal; its monthly internet usage plummeted to less than 1,000Mb.
[23] Mr Grindle further submitted that the particulars as to date given in the information were essential to the charge, emphasising that they took the form of
a date range rather than an approximate date. He also submitted that the dates are inextricably linked to the other particulars of the charge, notably the value of the property stolen.
[24] Mr Smith contended that particulars as to time are not an essential element of the charge, referring to s 331 of the Crimes Act 1961 which provides:
No count shall be deemed objectionable or insufficient on the ground—
(a) That it does not contain the name of any person injuriously affected; or
(b) That it does not state who is the owner of any property therein mentioned; or(c) That it charges an intent to defraud, without naming or describing the person whom it was intended to defraud; or
(d) That it does not set out any document which may be the subject of the charge; or
(e) That it does not set out the words used, where words used are the subject of the charge; or
(f) That it does not specify the means by which the crime was committed; or
(g) That it does not name or describe with precision any person or thing:
Provided that the Court may, if satisfied that it is necessary for a fair trial, order that further particulars in writing of any such document, words, means, person, or thing be furnished by the prosecutor.
[25] He also referred to para 331.04 of Robertson B and F Adams, Adams on Criminal Law, Brookers, Wellington, New Zealand, 1992-, in which the editors state that the normal approach is that a date specified in an indictment is not an essential matter.
[26] It is true that this charge was framed as a date range, but that does not alter the point that the date is a particular rather than an essential element. There was no question of Mr Davies being embarrassed or prejudiced in his defence. I accept Mr Smith’s submissions. It was sufficient if the evidence established theft within a reasonable period of the dates specified in the information.
Value of property stolen
[27] Mr Grindle also submitted that there was no evidence as to how much data was illicitly downloaded during the relevant period, and how it related to the data cap. As noted above, the actual excess billed for the month ending 13 February
2004 was $208.72 and the information alleged that the internet usage stolen was valued at $205 (the discrepancy was not explained). Mr Grindle submitted that the charge was framed as a single billing period and, specifically, pleaded theft of the excess usage during that period.
[28] The charge was framed as follows:
Between the 14th day of January 2004 and the 13th day of February 2004 at Whangarei, [Mr Davies] did commit an offence against s 223(D) Crimes Act 1961 in that he did steal internet usage valued at $205 the property of Ian Clapperton of the Poster Faktory.
[29] Mr Smith responded that the charge was not framed by reference to the excess; rather, it simply alleged that the internet usage stolen had a value of $205. The amount or value of the property stolen is a particular of the charge, and its significance is that the police must show that the property has a value. They need not prove the precise value so long as they do prove that the value exceeds the relevant threshold in s 223; R v Koura [1996] 2 NZLR 9; (1996) 13 CRNZ 463 (CA). In this case, Mr Davies was charged under s 223(d), which concerns property
the value of which does not exceed $500. Accordingly, it was sufficient if the police proved that the internet usage had some value. Judge Moore accepted the police submissions on this point. In my view, he was right to do so. The only question that might arise is whether the defence may have been prejudiced by the focus of the information on excess usage. Mr Grindle did not suggest that it was, and it appears from Judge Moore’s decision that the issue of value was correctly identified and argued before him.
[30] I also reject Mr Grindle’s submission that the evidence failed to prove that Mr Davies’ usage had a value because the firm may have been within the data cap when he downloaded data. It appears that the contract between the Poster Faktory and Telecom provided for access (that is, a connection to the internet) and usage (that is, the right to transmit quantities of data via Telecom’s network). The Poster Faktory paid a flat fee in return for which it could download or upload a certain amount of data, with any excess being paid for on a per-megabyte basis. It does not follow that capacity used within the cap lacks value. Its value prima facie is measurable by the per-megabyte rate implicit in the monthly data cap and fixed fee.
[31] Nor were the police required to show that the Poster Faktory suffered a loss as a result of Mr Davies’ activities. That question would be relevant to reparation, but theft does not depend on proof of loss or damage to the victim. Section 223 requires rather that the thing stolen have a value. In any event, the firm did suffer a loss. If the data that Mr Davies downloaded did not cause it to exceed its monthly limit, he nonetheless deprived the firm of the valuable opportunity to use the internet for its own purposes without incurring any additional charge. If his usage did cause the Poster Faktory to exceed its limit, then it suffered a direct loss as a result of his actions.
Whether internet usage is property
[32] Mr Grindle contended that internet usage is not property for the purposes of s 2 and, specifically, is not a chose in action or any other right or interest. He accepted that the term chose in action describes all personal rights of property which can only be claimed or enforced by action and not by the taking of physical possession, and that the Poster Faktory and Telecom were parties to a contract under which the Poster Faktory purchased a quantity of megabytes per month. He also accepted that megabytes are a thing in action, capable of being stolen in the same way that units of electricity can be stolen. Internet usage, however, is not a thing in action. It simply describes an action or activity — that is, using the internet.
[33] Mr Smith noted in response that Mr Grindle conceded in the District Court that internet usage is a chose in action. And he contended that Judge Moore aptly stated that internet usage is measured in megabytes. I agree. In this context, internet usage describes data transmitted to and from a customer’s internet address using its internet service provider’s network, and the quantities of data are measured in megabytes. The information could perhaps have been framed more precisely as internet usage being data transmitted to and from the Poster Faktory’s internet address, but as expressed it sufficiently identified what had allegedly been stolen, and helpfully distinguished the quantity of data, with which the charge was concerned, from information (such as music or images) comprised or conveyed in the data. The firm’s rights under the contract are a chose in action, which
Lord Fitzgerald defined in Colonial Bank v Whinney (1886) LR 11 App Cas 426; [1886-90] All ER 468 (HL), at p 446; p 477 as “incorporeal rights which are not visible or tangible or capable of manual delivery of actual enjoyment in possession in its ordinary sense, and which, if denied, can be enforced only by action or suit”.
[34] Alternatively, Mr Grindle argued, the only megabytes belonging to the Poster Faktory were the ones that it had prepaid Telecom for, while Mr Davies had been charged with usage in respect of the amount that exceeded the monthly limit. By exceeding the limit he may have incurred an obligation on behalf of his employer, but he did not deprive the Poster Faktory of anything since it had an unlimited supply of megabytes available to it. There is nothing in this point; infinite capacity might have been available, but that which was used was nonetheless property in which the Poster Faktory had an interest, having acquired a contractual right to it and having incurred a contractual obligation to pay for it one way or another.
Was the internet usage taken dishonestly, without claim of right, and with intent to deprive the Poster Faktory permanently of it?
[35] Mr Grindle raised two issues under this head. The first was that there is evidence that Mr Davies had permission to download music videos, and the police failed to exclude the reasonable possibility that that permission had not been withdrawn during the period covered by the information. If so, the police failed to establish the necessary element of dishonest use or dealing with the Poster Faktory’s internet usage.
[36] Mr Grindle sought leave to file an affidavit attaching a transcript of a television interview given by Mrs Clapperton on 23 August 2006. In it Mrs Clapperton said that Mr Davies had asked for permission to download a few music files which “we didn’t have a problem with but we came in here one weekend and he had huge stacks of CDs”.
[37] In her evidence at trial, Mrs Clapperton had said that he was not allowed to use the internet during work time. Further, she and her husband had found him downloading music at the office one Saturday and he was told that he was not permitted to do it and his key was taken from him so that he could not enter the building outside work hours and he was told quite clearly that he was not to download music.
[38] I allowed Mr Grindle to file the affidavit. But as Mr Smith submitted, the evidence of the subsequent interview was not inconsistent with the evidence Mrs Clapperton gave at the hearing. It does show that he had permission to download music files, but it had been withdrawn after he was found downloading on a weekend.
[39] Judge Moore found that permission had been withdrawn “prior to the circumstances which gave rise to this charge”, referring to withdrawal of permission to download “music/videos” and confiscation of Mr Davies’ key to the premises. That conclusion was open to him. It is a clear inference from Mrs Clapperton’s evidence at trial that these steps had been taken some time before. Nothing in her television interview was inconsistent with that. The covert nature of his downloading activities tends to confirm that he knew he lacked permission. Any permission that had been given was, in any event, confined to
music files. Mr Grindle did not suggest that permission had been given for
Mr Davies to download pornography.
[40] Mr Grindle’s second point was that the police had failed to prove that dishonesty was contemporaneous with his downloading, because they could not show that at the time he downloaded data Mr Davies knew he was exceeding the data cap. This submission rested on the assumption that Mr Davies deprived his employer of nothing until he exceeded the data cap. I have already rejected that submission. Judge Moore found, correctly in my view, that Mr Davies knew he did not have permission to download music files and videos; it follows that he acted without any belief that he had express or implied consent or authority to do so.
The appropriate remedy for delay
The District Court decision
[41] Judge McDonald followed Winkelmann J in Du v DC at Auckland (2005)
22 CRNZ 505; [2006] NZAR 341 and the Court of Appeal in Martin v DC at Tauranga [1995] 2 NZLR 419; (1995) 12 CRNZ 509 (CA), in which Cooke P adopted the judgment of Sopinka J in R v Morin [1992] 1 SCR 771; (1992)
71 CCC (3d) 1 (SCC), (at p 787; p 13):
The general approach to a determination as to whether [the right] has been denied is not by the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in R v Smith (1989) 52 CCC (3d) 97, ‘It is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?’ (p 105). While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analysing how long is too long may be listed as follows:
1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including,
(a) inherent time requirements of the case, (b) actions of the accused,
(c) actions of the Crown,
(d) limits on institutional resources and
(e) other reasons for delay; and
4. prejudice to the accused. [Martin v Tauranga DC, P 424; P 536]
[42] Noting that Judge Moore had said:
I regret the delay in issuing this judgment. A number of events and factors have intervened in the evaluation of the submissions, several which proved to be far more fundamental than the makers of those submissions seem likely to have contemplated. [Para 37]
Judge McDonald held that all who are regularly involved in summary District Court work would be aware of the enormous pressures on the District Court criminal system. He observed that some of those pressures and the reasons for them were articulated by Judge Moore in Police v Dongmei He [2004] DCR 414. (In that judgment he indicated that it is commonplace for a Judge to find that
15 or so defended cases have been set down on a particular day, and the disposition of routine summary defended work was often possible only because
other cases collapse.) Nonetheless, Judge McDonald recognised that the fact that delay is systemic does not justify it: Police v Auckland DC (1999) 5 HRNZ 419.
[43] Judge McDonald found that the period of delay to the point of hearing was not exceptional. Mr Davies first appeared on 16 September 2004, and on
16 February 2005 a defended hearing date was set for 6 April. It had to be vacated because the police were not notified of the fixture. The hearing of the drugs and theft charges was then separated, for reasons which were not explained, and a fixture of 11 May set for the theft charge. It was vacated because Mr Grindle was unavailable. After the hearing on 5 and 8 July, Judge Moore called for written submissions, the last of which was to be filed by 19 August. The Judge recorded that counsel accepted that the delay to that point could not be criticised, nor was it out of the ordinary. The police conceded, however, that the delay of 11 months from the hearing until reserved judgment was delivered was inordinately long.
[44] Judge McDonald found that there had been a breach of s 25(b). The delay following the hearing was unduly long and was, of itself, a breach of Mr Davies’ fundamental right to be tried without undue delay. Although he was not prejudiced in the conduct of the hearing itself, he had put his life on hold awaiting the outcome, and had deposed to stress and adverse employment effects. He is employed as an alarm technician but was unable to apply for a security guard’s licence, which is a requirement of a career in that field. However, Judge McDonald declined to stay the matter. It would be disproportionate to do so in circumstances where Mr Davies had not been prejudiced in his conduct of the defence. The breach could be addressed by recording it and making an allowance in the sentence.
[45] On 21 August 2006 Judge McDonald sentenced Mr Davies. Because the sum of $205 had been repaid to the Poster Faktory he did not order reparation. He declined a discharge without conviction, which was advanced on the grounds that Mr Davies’ career prospects in the security business (installing alarms) would be jeopardised and that he might be prevented from travelling to Canada and the US. The offence was a serious one, and against that Mr Davies could still obtain a security guard licence by displacing a statutory presumption that a person with a conviction for a dishonesty offence would not be given a licence. The argument that a conviction would preclude travel to Canada and the US was no more than a possibility advanced without evidence. He noted that Mr Davies had previously been discharged without conviction in 2000 for a drug charge. On the theft charge, he was convicted and ordered to pay $130 Court costs. The allowance made for the breach of s 25(b) was not to impose any further penalty other than conviction and costs. Mr Davies also pleaded guilty to the drug charges, disposition of which had by agreement awaited the theft matter. On these he was convicted and fined $150 with Court costs.
The application for judicial review
[46] The application for judicial review was filed on 15 December 2006. It pleads a breach of Mr Davies’ rights under s 25(b) of the New Zealand Bill of Rights Act 1990. Judge McDonald failed to take into account relevant matters, namely the importance of the New Zealand Bill of Rights Act 1990, the impact of the breach on Mr Davies, the need for an adequate remedy to recognise the breach, and the balance between the breach of rights, the impact of the breach and the available remedies. It is said that the normal penalty for an offence of this sort
would be a small fine; thus the remedy given for breach of Mr Davies’ rights was inadequate, particularly where reparation had been made.
[47] It was common ground before me that s 25(b) is available to Mr Davies, because it extends to delay after hearing and before judgment and sentence. Mr Powell argued, rather, that Judge McDonald did take the relevant considerations into account, and that he was entitled in the exercise of his discretion to determine that the abridgement of the right guaranteed by s 25(b) warranted a reduction in sentence but not a stay.
The recent authorities
[48] In Du (above) the applicant for judicial review faced serious assault charges arising out of a fight on 6 April 2003. He was promptly arrested, and depositions were held on 27 June 2003. He was scheduled to go to trial on 13 April 2004 but that date was a legal holiday. The error was discovered in October 2003 and the trial date was changed to a stand-by date for 3 May 2004. The trial did not take place then, and it was rescheduled to November 2004. In the meantime, he applied for stay alleging breach of his right to a trial without undue delay under s 25(b). Because the Crown failed to appear at a fixture for the hearing of the stay application, the trial date of 1 November 2004 was vacated and the trial was subsequently rescheduled for 8 August 2005. By the time of the hearing before Winkelmann J, some 28 months would elapse between arrest and trial. Two eyewitnesses were no longer available.
[49] Winkelmann J accepted that s 25(b) protects three significant values; the abridgement of liberty caused by pretrial incarceration or bail conditions, the anxiety accompanying public accusation or the threat of punishment, and impairment to the defence. She cited the passage from the judgment of Sopinka J in Morin which I have referred to above. She held that the District Court Judge erred by assuming the only issue at stake was whether a fair trial was still possible.
[50] Winkelmann J observed that the case was a straightforward assault involving two victims and no extensive inquiries were necessary. She considered affidavits from Ministry of Justice officials explaining the extent of delays in the Auckland District Court and their causes, and she endorsed Paterson J’s dicta in Police v Auckland DC that the fact that delay is systemic does not justify it. The delay was substantial and unacceptable for a case of that kind. Further, material prejudice had resulted.
[51] Turning to remedy, Winkelmann J reviewed New Zealand and English authorities and concluded that a stay is not a necessary remedial response to a breach of s 25(b). Rather, a flexible approach is required. A stay would not be the appropriate remedy unless there could no longer be a fair hearing or it would be otherwise unfair to try the defendant. On the facts, a fair hearing was no longer possible.
[52] In Graham v DC at Blenheim [2007] NZAR 32, a stay was granted in a case in which the applicant for judicial review faced delay of 22 months from arrest to the proposed date of trial. He was charged with importing the Class B controlled drug ecstasy. Seventeen of the 22 months related to delay from committal to proposed trial; at five successive callovers no trial date was available and the date was adjourned to the next callover. The Court reviewed evidence
establishing that the Blenheim District Court was under severe pressure, partly because of refurbishment which limited available courtrooms. The New Zealand authorities were reviewed. In particular, the Court noted that in R v Harmer
26/6/03, CA324/02; CA352/02, the Court of Appeal emphasised that the question whether delay is undue is answered by a case-specific assessment in which the complexity of the case must be considered along with the duration and causes of delay. On the facts, the applicant had been unable to leave New Zealand to return to his permanent home, job, martial arts career and partner in Australia. These considerations dispelled any doubt that the delay was undue.
[53] The Court shared Winkelmann J’s view that the approach to a breach of s 25(b) should be flexible and proportionate; it followed that stay should not be regarded as the standard remedy. However, the inquiry is broader than simply whether there can no longer be a fair hearing or whether it would otherwise be unfair to try the accused. The security and liberty of the appellant had already been affected by delay, and a stay was needed to vindicate his rights.
[54] The Crown’s position is that a stay should be withheld in all cases other than those where the fairness of the trial itself can no longer be assured or there is some egregious quality to the breach such that the community ought to be offended by the prosecution continuing. If, following Graham, more general considerations of prejudice are relevant, a stay may be appropriate where the charge is minor and the prejudice wholly disproportionate, as might happen if the eventual penalty would be outweighed by being held in custody or released on restrictive bail conditions while awaiting trial. Further, sentence reduction is an available remedy for breach of s 25(b); that was accepted in principle by the Court of Appeal in R v Manawatu 10/11/06, CA111/05; CA112/05.
[55] I agree with Mr Powell that there is no inconsistency between Du and Graham; in the latter case, the Court was called on to consider whether prejudice that did not affect the trial itself might justify a stay. I approach the matter, following Graham, on the basis that a stay is warranted if, on the facts, the delay has breached s 25(b) and its impact has been such that a stay is the proportionate response to the breach. That calls for a case-specific assessment in which unfairness to the accused resulting from the delay must be balanced against the community’s interest in bringing the accused to justice, bearing in mind that the latter interest is proportionate to the seriousness of the charges faced.
The remedy in this case
[56] The Attorney-General did not contend that Judge McDonald was wrong to find that there was a breach of s 25(b) by reason of the delay in delivery of Judge Moore’s decision. As mentioned above, he chose not to file an affidavit. Mr Powell accepted that there was “no institutional reason” for the delay. However, he emphasised that there was no prejudice to the defence, for the delay was incurred post-hearing, and that although the value of the property stolen was small, theft from an employer is an inherently serious offence.
[57] Mr Grindle pointed to interference with Mr Davies’ liberty, he having been on bail throughout, and the stress to which the criminal process subjected him. This was a relatively minor offence the penalty for which would not have exceeded
$500; Mr Davies, who was not legally aided at the time, spent more than that on counsel’s appearances at the five callovers between hearing and judgment,
the inquiries made of the Registrar, and filing the stay application. A stay was the appropriate response to delay in the circumstances.
[58] It is the delay between the hearing and judgment that breached s 25(b) in this case. I agree with counsel that the delay was inordinately long. It was some
11 months; the hearing concluded on 8 July 2005, the last of the written submissions were filed on 19 August, and the decision was not delivered until
30 June 2006, 9 days after the stay application was filed. Although the case raised some novel legal points, they were narrow and the facts concise. And while I readily accept the general proposition that the District Court is under pressure, the Attorney-General chose not to file evidence; rather, he conceded that there was no institutional reason for the delay. Thus I cannot accept that pressure of work in the District Court explains the delay. The most that can be said is that the novel legal issues, and perhaps some inadequacy in the submissions to which the Judge adverted, justified a small part of the delay.
[59] Mr Powell argued that Judge McDonald undertook a balancing exercise in which all relevant matters were taken into account, and that I should not interfere unless his decision was plainly wrong. I accept that the Judge did undertake a balancing exercise, but he assumed that institutional reasons — pressure of work in the District Court — explained the delay. That conclusion was wrong. I also accept Mr Grindle’s submission that the Judge did not refer to the penalty that would otherwise have been imposed when assessing the application for stay and in imposing sentence. Rather, he held that the recording of the breach was the principal remedy, and that he would also make an allowance in the sentence.
[60] Considering the matter afresh, I observe that Mr Davies’ appeal against conviction lacks merit for reasons already outlined; thus the public interest in bringing offenders to justice counts against a stay. Because the delay was post-trial, there was no prejudice of an evidential nature. And although the offence involved a small sum, it was a case of theft from an employer. I observe too that Judge McDonald recognised that systemic delay is not excusable. Some delay — Mr Powell suggested a month — was inevitable having regard to the legal issues.
[61] However, it remains the position that the overall delay was inexcusable. And the case does assume a different complexion once it is accepted that the causes of the delay lie with the trial Judge rather than the resources that the community has chosen to allocate to the administration of justice. I must also recognise that, as Mr Powell rightly conceded, Mr Davies and his counsel could have done no more to encourage the Court to deliver its judgment. This is not a case where the accused bided his time, hoping to exploit delay; while an accused has no obligation to hasten the trial, he is in a stronger position when it comes to remedy if he has taken the opportunity to protest delay: Martin v DC at Tauranga, at p 432; pp 544-545, per Hardie Boys J. It is true, as Judge McDonald observed, that Mr Davies had consented to delay in the hearing of a minor drugs charge and so faced a degree of legal uncertainty in any event. Nonetheless, his inquiries of the Court lend credence to his evidence that the delay in dealing with the theft charge did impose real costs upon him. In this Court he filed an affidavit deposing to stress that led to him leaving a job and being prescribed sleeping pills, disruption of his plans to work as an alarm technician in the security industry, the breakdown of a relationship, and legal costs that he is paying off. He was on Court bail throughout, so his liberty was affected. Although his bail conditions
were not onerous, they did include a residential condition and he had to seek approval when he changed address. The offence is a relatively minor one; he was never likely to face a custodial sentence. Reparation has been paid.
[62] I conclude that on the facts of this case, a stay was the proportionate remedy for the breach of Mr Davies’ rights.
Decision
[63] The conviction entered in the District Court is quashed and, to the extent that it remains necessary to do so, the criminal proceeding against Mr Davies is stayed.
[64] Mr Davies is entitled to costs of the judicial review application on a 2B basis.
Conviction quashed; proceedings stayed
Reported by Claire Browning
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