France v Police - [2020] NZHC 2625

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-404-000104

[2020] NZHC 2625

BETWEEN
MALCOLM FRANCE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 06 October 2020

Appearances:

Appellant in person

E H K Rangamuwa for the Respondent

Judgment:

6 October 2020

ORAL JUDGMENT OF CAMPBELL J

Solicitors/Counsel:
Meredith Connell, Auckland Copy to:
Appellant

FRANCE v NEW ZEALAND POLICE [2020] NZHC 2625 [6 October 2020]

Introduction

[1] In March 2019 the appellant, Mr France, appeared before Justices of the Peace in the Auckland District Court for trial on charges of three infringement offences. These were:

(a)operating a private vehicle not displaying current evidence of vehicle inspection: fined $200;1

(b)providing false or misleading information as to identity: fined $750;2 and

(c)drove without appropriate current driver licence: fined $300. 3

[2]Mr France was found guilty and fined by the Justices of the Peace.

[3] Mr France appealed the decision. The hearing of the appeal was scheduled in the Auckland District Court on 5 March 2020 before Judge Henwood.

[4] Mr France failed to appear at the hearing of that appeal. Judge Henwood dismissed the appeal for non-appearance and no prosecution.

[5] On 23 March 2020, Mr France appealed to this Court against Judge Henwood’s decision. Because his appeal is a second appeal, Mr France required leave to appeal. Mr France did not seek leave at the time that he filed his appeal. But he subsequently filed an application for leave to appeal dated 5 August 2020. That application for leave to appeal was scheduled for hearing before me today.

[6] In advance of today’s hearing Mr France, who is representing himself, filed further submissions directed at his substantive appeal.

[7] It is not going to be necessary for me to address either of Mr France’s submissions. This is because the respondent has itself submitted that leave to appeal

1      Land Transport Act 1998, ss 6 and 34; maximum penalty: fine not exceeding $2,000.
2      Land Transport Act 1998, ss 14 and 44; maximum penalty: fine not exceeding $10,000.
3      Land Transport Act 1998, ss 5 and 31; maximum penalty: fine not exceeding $1,000.

should be granted, and the appeal should be allowed with the matter remitted back to the District Court for reconsideration of the first appeal.

[8] The respondent’s submission is based on s 338 of the Criminal Procedure Act 2011 (the Act). Section 338(1) empowers an appeal Court (in this case the relevant appeal Court being the District Court hearing Mr France’s first appeal) to dismiss an appeal if the appellant fails to comply with a timetable or other procedural order fixed for the appeal. However, before dismissing an appeal under this provision, the appeal Court must, under s 338(2), first give the appellant 10 working days’ notice of its intention to dismiss the appeal. The Court cannot dismiss the appeal if, after notice has been given, the appellant rectifies the non-compliance within the notice period given by the Court.

[9]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 2625
Decision Date: 6 October 2020

CaseChat Overview and Summary

The case of France v Police involved an appeal by Mr France against the decision of Judge Henwood, who dismissed his appeal against a decision of the Auckland District Court. The appeal was dismissed due to Mr France's failure to appear at the hearing. Mr France subsequently appealed to the High Court, arguing that the dismissal was improper. The High Court considered whether the dismissal was justified and whether Mr France should be granted leave to appeal. The legal issues before the Court were whether Judge Henwood had the authority to dismiss the appeal for non-appearance and whether Mr France was given a fair opportunity to present his case. The Court found that Judge Henwood did not have to rely on section 338 of the Criminal Procedure Act 2011 to dismiss the appeal, as the Court has an inherent power to dismiss an appeal for want of prosecution. However, the Court held that Mr France should have been given at least one further opportunity to advance his appeal before it was dismissed. The Court granted leave to appeal, allowed the appeal, and remitted the matter to the Auckland District Court for a further hearing to allow Mr France one further opportunity to advance his appeal. The Court also declined Mr France's request to stay the matter in the High Court as it involved a tort, stating that any civil claim should be pursued in a separate proceeding.

Orders