Edwards v Police
[2012] NZHC 707
•18 April 2012
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2011-470-000016 [2012] NZHC 707
BETWEEN LISA CATHERINE EDWARDS Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 16 April 2012 (Heard at Rotorua)
Appearances: R Mulgan and T W Nabney for Appellant
G Hollister-Jones for Crown
Judgment: 18 April 2012
JUDGMENT OF VENNING J
This judgment was delivered by me on 18 April 2012 at 2.00 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Tauranga
Copy to: T W Nabney, Tauranga
R Mulgan, Auckland
EDWARDS V NEW ZEALAND POLICE HC TAU CRI-2011-470-000016 [18 April 2012]
[1] The appellant was charged with driving with excess breath alcohol on 30 July
2010. Following a defended hearing on 11 January 2011 in the District Court at Tauranga, Judge Bidois found the charge proved in a reserved judgment he delivered on 18 March 2011. Judge Bidois then declined the appellant’s application for a discharge without conviction and convicted her, fined her $900 plus costs, and disqualified her from driving for six months.
[2] The appellant filed this appeal against conviction and sentence on 27 May
2011. Since filing the appeal she has paid the fine and served the period of disqualification.
Why the appeal must be allowed
[3] The appellant challenges the District Court Judge’s findings that:
(a) her right to speak to a lawyer of choice was not denied her; and
(b)she received the 10 minutes required by s 70A of the Land Transport Act 1988 to consider the option of a blood test after failing the evidential breath test.
[4] The appellant proposes to support her grounds of appeal by her evidence before the District Court together with telephone records and a photograph of the display of her cell phone. The appeal clearly challenges factual determinations made by the District Court Judge. The notes of evidence are crucial to the appeal. Unfortunately the notes of evidence from the defended hearing are not available. Due to a technical problem the FTR recording system did not record the evidence at the District Court hearing. As I understand it, it is not a question of the record being misplaced, but rather, because of administrative or technical error the hearing was just not recorded.
[5] In the circumstances the Crown accepts it is not possible to determine the appeal and it must be allowed. The issue for this Court is whether the case should be remitted to the District Court for a rehearing pursuant to s 131(1) Summary Proceedings Act 1957 or, as the appellant submits, the appeal should simply be allowed with no order for rehearing.
[6] In support of his submission that the case should not be remitted for a rehearing Mr Mulgan made the following points:
(a) the appellant has paid the fine and served her disqualification; (b) the offending was in July 2010, now almost two years ago;
(c) the offending was a first offence for the appellant and it is unlikely she will re-offend in any way;
(d)the appeal cannot be dealt with because of administrative error within the Court system. The appellant was not at fault and should not be put through the process again;
(e) the appellant has already incurred significant expense defending the charges and has also suffered stress as a result of the charges and the disproportionate amount of publicity that she has been exposed to because of her profession as a surgeon;
(f) the offence of drinking and driving is at the lower end of the scale of criminality; and
(g) the long delay is likely to have affected the memory of witnesses.
[7] The respondent, while conceding the appeal must be allowed, submits that none of the above factors are compelling in the present case and that the matter should be remitted for a rehearing.
[8] In support of his submissions for the appellant Mr Mulgan relied on the authorities of Friar v Police;[1] Kostevc v Police[2] and Police v Raynes.[3]
[1] Friar v Police HC Auckland A72/03, 11 July 2003.
[2] Kostevc v Police HC Auckland CRI-2004-404-18, 4 June 2004.
[3] Police v Raynes HC Auckland AP86/98 10 November 1998.
[9] In the cases of both Friar and Kostevc the record was not available for the hearing and the Judges declined to order a rehearing. Mr Mulgan submitted that there were a number of similar features between those cases and the present.
[10] Mr Friar was convicted of trespass and using insulting language to police officers. He was convicted and fined $250 and $130 costs in each case. The offending arose following an incident when the appellant was in an intoxicated state in a wine shop. He refused to leave when asked to do so and used insulting language towards the police when they attended. I consider that to be quite different to the present case. As Randerson J noted:
The matters at issue are relatively minor in the scale of things.
[11] Also, importantly in Mr Friar’s case, the entire District Court file was lost. There were no notes relating to the Judge’s reasons for conviction and sentence. Randerson J was unable to conclude whether Mr Friar had even had a fair trial. Given the relatively minor nature of the matters in issue justice required him not to direct a rehearing.
[12] Mr Kostevc was found guilty in January 2003 on two counts of resisting and obstructing a constable acting in the execution of his duty. He was not sentenced on those charges until 7 August 2003. On that same date another District Court Judge found him guilty of an additional five charges also relating to the police. He appealed separately against both sets of convictions. Mr Kostevc abandoned his appeal against the two convictions relating to the April 2002 incident. His appeal in relation to the remaining five could not be determined because the District Court
could not locate the tape used to record the evidence. On balance, Harrison J was
satisfied the charges should be dismissed and that it was not in the interests of justice that Mr Kostevc should be tried again on those five counts. The Judge noted that Mr Kostevc would be bound to serve the same sentence following the abandonment of his appeal against conviction on the first two counts and it would not be in the interests of justice he require the police and Mr Kostevc to repeat the same process with the same end result.
[13] The case of Raynes is of little assistance. It involved a Crown appeal and the failure to comply with strict time frames for filing the relevant documents.
[14] Against Friar and Kostevc is the case Mr Hollister Jones referred to of Ranapia v Police.[4] In that case Mr Ranapia had been convicted of what was colloquially referred to as a “boy racer” offence under the Land Transport Rule: Vehicle Equipment 2004 rules. French J was satisfied the appeal should be allowed on the ground the Justices of the Peace had wrongly excluded consideration of the certificate of compliance from the evidence. French J rejected the submissions for
[4] Ranapia v Police HC Christchurch CRI-2008-409-207, 30 March 2009.
Mr Ranapia in that case that a rehearing would be unjust because:
it was unusual for the High Court to remit a matter for rehearing in the
District Court;
the matter was a trivial one, not involving a serious criminal offence;
it would be unfair to subject the appellant to another hearing and the inevitable costs, delay, stress and time that would be involved, especially
when it was not his fault the error had occurred;
a rehearing should be limited to remedying innocent oversights;
arehearing would place an undue economic burden on the community law centre which had represented the appellant;
a fair rehearing may not be possible given the passage of time;
the grounds of appeal raised other legal issues which should be more appropriately dealt with in the High Court and which may result in the case
returning to the High Court anyway.
[15] French J accepted that the seriousness of the charge was a significant factor to be taken into account and that the less serious the charge the less likely it is that a rehearing is desirable and should be ordered.[5] However, she concluded that the seriousness of the charge was not a conclusive factor and that the overriding consideration is what course of action would best meet the interests of justice in the particular circumstances.
[5] Scott v Otago Regional Council HC Dunedin CRI-2008-412-20, 3 November 2008.
[16] I accept, as Mr Mulgan correctly pointed out, that Ranapia did not involve the loss of notes of evidence as the present case does and that the case did seem to involve some issues of interpretation of the relatively new legislation which may have had a wider implication. However, the cases of Friar and Kostevc are also distinguishable from the present on their particular facts. At the end of the day the Court has a discretion whether to direct a rehearing or not in circumstances such as the present. The overarching consideration must be the interests of justice in the particular circumstances.
[17] In the present case, although I accept the appellant has served her sentence, has a previous good record, is unlikely to reoffend and has already incurred significant expense and more than the usual stress associated with such proceedings because of the publicity that she has been subjected to, I consider the interests of justice require a rehearing.
[18] It has not been possible for this Court to deal with the appeal on its merits. However, the basis of the appeal is essentially a challenge to the District Court Judge’s findings on issues of credibility. The Judge made those findings on credibility against the appellant in a careful, reserved decision. In that regard I note
the comments of the Supreme Court in the Austin, Nichols & Co Inc v Stichting
Lodestar decision, particularly the caution appropriate when seeing the witnesses provides an advantage because credibility is important.[6]
[6] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [13].
[19] While the unavailability of the notes of evidence is no fault of the appellant, the case can still be fairly reheard in the District Court. The offending occurred on
30 July 2010. The case could be given priority and be heard within two years (or shortly thereafter) of the original incident. Any prejudice in the delay is likely to impact on the prosecution rather than the appellant. The only witnesses were the police officer involved and the appellant. The appellant made a record of her recollection of the events some three days after the incident. The District Court Judge permitted her to refer to that record and she also has the documentary telephone records and phone screen printout.
[20] I accept there will be an additional expense to the appellant in a rehearing but any such rehearing should be relatively brief. I also acknowledge the appellant has had more than the usual media attention directed at her. That is regrettable but it outside the control of the court and is not of itself, even when taken into account with the other factors referred to by Mr Mulgan, a reason not to direct a rehearing in this case.
[21] Finally, I note that this offending raises public safety concerns. The breath alcohol reading was high, over twice the legal limit. The appellant was planning to drive four kilometres to her home across a busy city. I do not accept Mr Mulgan’s submission that the offending lies at the lower end of seriousness. Mr Mulgan relied
on the decision of Muggeridge v Police to support that submission.[7] In that case
[7] Muggeridge v Police HC Tauranga, CRI-2008-463-57, 2 December 2008 at [24].
Woodhouse J accepted a submission of counsel that such offending:
is not particularly serious if weighed in relation to the full range of offences in the Crimes Act and other enactments.
[22] With respect that must be correct if one considers that the most serious offence in the Crimes Act is murder. However, as Woodhouse J went on to state:
That is not to suggest that drink driving is not a serious problem and that the offence is not of great consequence.
[23] I consider offending of this nature to be of a more serious nature than the offending in Friar and Kostevc which is more properly categorised as summary offences offending.
Conclusion
[24] While the appeal must be allowed because of the absence of record of the lower Court hearing, I am satisfied the interests of justice require that there be a rehearing.
Result
[25] The appeal is allowed. The case is to be reheard in the District Court at Tauranga. In the circumstances there is no basis to consider the appeal against sentence. If the appellant is successful in defending the prosecution in the District Court that will be an end to the matter. If the appellant is, however, convicted again then she will have a right of appeal against that conviction and/or any sentence
imposed in that Court following such conviction.
Venning J
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