Gerrard v Ministry of Justice HC Hamilton Cri-2009-419-000077
[2009] NZHC 2213
•9 December 2009
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2009-419-000077
SANTANA SHARDEI TUWHANGAI GERRARD
Appellant
v
MINISTRY OF JUSTICE
Respondent
Hearing: 9 December 2009
Counsel: Appellant in person with McKenzie friend
P Cornege for the respondent
Judgment: 9 December 2009
(ORAL) JUDGMENT OF STEVENS J
Solicitors/Counsel:
Crown Solicitor, PO Box 19173, Hamilton 3244
Copy to:
S Gerrard, 12 Maitland Street, Hamilton 3204
SANTANA SHARDEI TUWHANGAI GERRARD V MINISTRY OF JUSTICE HC HAM CRI-2009-419-
000077 9 December 2009
Introduction
[1] This is an appeal against an order imposing on Santana Gerrard (the appellant) a sentence of 100 hours community work in substitution for unpaid fines owing to the Ministry of Justice (the respondent). The sentence was imposed by Judge A I M Tompkins on 1 October 2009 at the District Court at Hamilton. The Judge had received a report from the Deputy Registrar of the Hamilton District Court on behalf of the respondent pursuant to s 88(2)(b) of the Summary Proceedings Act
1957 (the report).
[2] The report indicated that fines had been imposed on the appellant in respect of seven infringement offences as follows: one offence relating to a warrant of fitness; one offence relating to an unlicensed motor vehicle; one offence relating to excessive speed; and four relating to driver’s license offences. The report confirmed that the appellant had made no payments to the Collections Unit as required by law.
[3] In addition, the report confirmed that the appellant was aged 18 years, still attending secondary school and expecting a child in late December 2009. As the appellant was not in receipt of any source of income to enable her to meet the fines or to come to an appropriate form of arrangement in relation to the fines, the report recommended that the fines of $2,730 be substituted for an alternative sentence of community work. Importantly, the report confirmed that other enforcement options had been considered, but the fines remained unpaid.
[4] On appeal, the appellant submitted that the fines were not in fact outstanding as they had been paid by her by posting seven bills of exchange to the relevant office of the Collections Unit on 26 May 2009. Accordingly, the appellant submitted that no monies were owed.
Factual background
[5] There is no dispute as to the facts. The report establishes conclusively that the appellant had, as at 1 October 2009, $2,730 in outstanding fines. The appellant had no means of paying for these fines as she was not in receipt of any source of
income. That position was unlikely to change because of the fact that she was pregnant with a child due in late December.
[6] That remains the position today. Indeed, when the appellant came to Court it was clear her child would be born soon and, when that occurs, the appellant will find it impossible to work and will continue to have no source of income from which to meet the fines.
District Court decision
[7] The notes of Judge Tompkins at the time of considering this application detailed a discussion between the Judge and the appellant as to whether the appellant wished to proceed at the time without the benefit of legal advice. A duty solicitor was available and the Judge recommended that the appellant would be well advised to take advantage of this offer.
[8] I note in passing from the transcript of what transpired in the District Court, that the appellant also sought to obtain “diversion”. That was not one of the options open to the Judge who explained the position clearly to the appellant.
[9] The appellant, however, seemed determined to represent herself and was again advised by the Judge that it would not be in her best interests to do so. Nevertheless, the appellant asked the Judge if she could “get it dealt with now”. The Judge agreed to deal with the matter there and then and as indicated granted the request by the respondent and substituted a sentence of 100 hours community work.
[10] It is from that decision that the appellant now appeals.
Approach on appeal
[11] A defendant has a general right of appeal against conviction or sentence pursuant to s 115 of the Summary Proceedings Act 1957. A general appeal is by way of rehearing: see s 119. The High Court’s general powers on rehearing are outlined in s 121.
[12] The principles applicable to general appeals are set out in the Supreme Court decision of Austin Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141. In a general appeal the appellant has the onus of satisfying the appellate court that it should differ from the original decision, but the appellate court must come to its own view on the merits.
Submissions for the appellant
[13] The appellant filed a notice of appeal and set out the grounds of her appeal. The notice was supported by an affidavit dated 29 September 2009 which is described as an “affidavit of counterclaim for defendant”. The affidavit claimed that some of the infringement notices were paid “by the bills of exchange payment process (exhibit A) as full and final settlement of that matter”. Exhibit A was not in fact annexed to the affidavit and neither were any of the other exhibits referred to by the appellant.
[14] The appellant submitted that the sentence breached her rights under s 84(5) of the Summary Proceedings Act, which provided that it is not necessary to comply with notice requirements of s 84 where a fine is paid in full before the notice is delivered or sent. The appellant also submitted that her rights under s 84(2)(d) of the Summary Proceedings Act had been breached, as her request to the Court Manager for a hearing date to dispute the payment was refused.
[15] The appellant further submitted that her rights under s 3 of the Bills of Exchanges Act 1908 enabled her to meet the outstanding fines by providing payment by way of a bill of exchange made in full and final settlement of the fine notices set out in Fines Summary PPN1543441291. It is not clear whether these covered all of the seven fines concerned but I will deal with that matter further below.
[16] Finally, the appellant submitted that the sentence did not follow the precedent of Cooke P in International Ore & Fertilizer Corporation v East Coast Fertiliser Co Ltd [1987] 1 NZLR 9. The appellant claimed that this decision was authority for the proposition that bills of exchange payments are the equivalent of cash and that this is prima facie evidence that the fines payments have been lawfully paid.
[17] At the hearing of the appeal, the appellant appeared in person. She was accompanied by a McKenzie friend who was permitted to be present in court sitting alongside her to make notes for the appellant and to make any helpful suggestions to her in the course of argument. During the argument, I sought to clarify from the appellant precisely when it was that the bills of exchange had been provided to the Ministry of Justice. The appellant told the Court that each of the seven fines had been paid separately by means of a bill of exchange sent in a self-addressed envelope provided by the respondent for the purpose of forwarding the amount of the particular fine in the relevant fine notice. When questioned upon which bank or other entity the bill of exchange was drawn upon, the appellant initially had no answer. No particular bank or other form of financial institution was identified.
[18] When pressed further on the point the appellant said that each of the bills of exchange had been drawn on the “Crown”. When asked to explain how and in what manner the Crown might be a party to a bill of exchange of the type referred to the appellant simply had no answer.
[19] At one point, when asked whether there was a copy of these documents available for inspection by the Court, the appellant said that she did indeed have a copy, but it was contained on a memory stick which was said to be in the possession of the McKenzie friend. But the appellant did not have an actual copy available for the Court and neither had copies been attached to the affidavit as exhibits A to F. There was no point in allowing time for the provision of such a copy, because even if one had been provided it is plain from the explanation offered that the Crown was not a real party to the bill of exchange such that it could be expected to honour the bill of exchange if and when it had been presented by the Ministry of Justice.
Submissions for the respondent
[20] Mr Cornege for the respondent filed helpful written submissions. He submitted that there was no evidence before the Court that the fines had been paid. Furthermore, there was no evidence that the purported payment by way of a valid bill of exchange had ever been made.
[21] Counsel submitted that it had not been made clear as to what form the purported bills of exchange took. However, counsel speculated, not unreasonably, that if indeed bills of exchange had been sent to the respondent, such documents would not have entitled the Ministry of Justice to demand immediate payment from a third party such as a bank or other financial institution. Thus, they were not legally enforceable documents. The respondent submitted that the appeal should therefore be dismissed.
Discussion
[22] I deal first with the appellant’s arguments in relation to the Summary Proceedings Act. The first argument was that s 84(5) had been breached. This section relates to compliance with notice requirements in s 84 and indicates that compliance is not necessary where the fines have been paid in full before the notice is delivered or sent. This section is of no assistance whatsoever to the appellant because there is simply no evidence before either the District Court or this Court to indicate that the fines have been paid in full before the notice was delivered or sent. In fact, the reverse is the case. The evidence suggests that no payment had been made and that the possibility of the infringement fee being satisfied by a valid bill of exchange has not been established by the appellant.
[23] I am satisfied that the requirements of s 84 of the Summary Proceedings Act simply does not arise on the facts of this case. There is nothing in the first point raised by the appellant.
[24] The second submission was to the effect that s 84(2)(d) of the Summary Proceedings Act required the Court Manager to provide a hearing date for the appellant to dispute the payment when she requested to do so. However, s 84(2)(d) does not provide such a requirement. Instead, it simply states that a notice of a fine must set out the defendant’s rights of appeal. On the facts of this case, the argument does not assist the appellant. That is because the Deputy Registrar determined to take action under s 88 of the Summary Proceedings Act. Having so decided the appellant was served with an order that she be brought before a District Court Judge pursuant to s 88(2A) to which order she responded by appearing before Judge
Tompkins on the day and at the time required. Such order made it quite clear to the appellant that the District Court Judge may at that time make a range of orders including community work of up to 400 hours.
[25] I am satisfied that there is nothing in the second point raised by the appellant.
[26] The next argument was that the fines had been paid in full by way of seven bills of exchange. There no evidence before either the District Court or this Court to support this ground of appeal. The details of the relevant bills of exchange have not been placed before the Court. Had the appellant wished to provide evidence of whatever it was that was on the memory stick, then the way in which to have done that would have been to provide a duly sworn affidavit attaching the relevant documents by way of exhibit. The appellant plainly knew about the possibility of filing an affidavit and did so, albeit omitting to annex copies of the so called bills of exchange.
[27] However, even if copies of the bills of exchange had been provided, the notion that the relevant paying party was “the Crown” simply means that the bills of exchange concerned would not have been effective to discharge the liability of the appellant. They were not valid and effective bills of exchange because “the Crown” as drawee has at no time been shown by the appellant to have become an acceptor by assenting to the terms of the order and signing it as the acceptor: see Halsbury’s Laws of England (4ed, 2002) Vol 4(1) – Bills of Exchange, Cheques and Promisory Notes at [307].
[28] Not surprisingly, the appellant provided no evidence from any source to show that the seven bills of exchange had in fact been honoured. In these circumstances it is not difficult to understand why Judge Tompkins granted the application by the Ministry of Justice and substituted 100 hours community work for the outstanding fines.
[29] The appellant has not satisfied the onus of showing that the decision of Judge Tompkins to impose the sentence of 100 hours community work was wrong. On the contrary, on the material before me the Judge was entirely correct to so order.
[30] Incidentally, I note that when he made the order imposing the sentence of community work, the Judge emphasised to the appellant as follows: “If you do not do your community work, the consequences become very much more serious.” I endorse those observations. Now that the appeal has been heard and determined against the appellant, it will be important that the appellant sets about completing her
100 hours of community work.
[31] A notable feature of this case has been that the appellant has eschewed obtaining legal advice, but has been assisted by a McKenzie friend. The appellant is a rather naïve and unsophisticated young woman who appears to have been manipulated by others encouraging civil disobedience, rather than providing guidance on how the appellant should go about complying with the laws of the land.
Result
[32] The appeal must therefore be dismissed.
Costs
[33] The respondent did not ask for costs and no order for costs is made.
Stevens J
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