Gilbert v Police

[2013] NZHC 2556

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2013-416-0012 [2013] NZHC 2556

BETWEEN  SAMUEL GILBERT Appellant

ANDPOLICE Respondent

Hearing:                   1 October 2013

Counsel:                  M Prinsloo for Appellant

F E Cleary for Respondent

Judgment:                1 October 2013

ORAL JUDGMENT OF THE HON JUSTICE KÓS

[1]      Mr Gilbert was convicted of disorderly behaviour by Justices of the Peace at the District Court at Wairoa on 13 March 2013.  He has appealed.  His ground of appeal is denial of natural justice.  He says he was present at Court that day but that his case was not called.

Background

[2]      Mr Gilbert was arrested following a fight involving Mongrel Mob members in Wairoa on 14 October 2012.  On 14 November 2012 he entered a not guilty plea and the matter was adjourned to 19 December 2012 for a defended hearing.   On

19 December 2012 Mr Gilbert again  appeared  and the matter was  adjourned to

13 March 2013 for hearing, with a note that he was to provide the Court with the name of his lawyer.

[3]      Mr Gilbert says he attended the Wairoa District Court on 13 March 2013. But his case was not called, or else he did not hear it.   As a consequence he was

GILBERT v POLICE [2013] NZHC 2556 [1 October 2013]

unable to mount a defence (as he was unrepresented).   He was convicted and sentenced in his absence.

[4]      Mr Gilbert has given an affidavit in support of his appeal.  He says that on the day  of  the  hearing  he  arrived  at  the  Wairoa  District  Court  between  9.30  and

10.30 am.   He waited in the garden area outside the courthouse.  He had intended to speak to a duty solicitor but none was available.  He made his presence known to the only other person that he says was present.  He says that was the police prosecutor, Sergeant Chris Flood.  When his case had not been called by 10.30 am, Mr Gilbert decided to leave.

[5]      After receiving a fine notice in the mail, Mr Gilbert realised belatedly that the case had gone ahead without him.

[6]      Subsequently he applied for a rehearing but that application was refused.  It is in effect from that refusal that he appeals today.

Discussion

[7]      Where a defendant attends Court as summonsed or remanded, he or she has a right to participate in the hearing and to present a defence.1     In Lima v R2  the appellant had attended Court but was misdirected by an attendant to the wrong courtroom.  Her application (which was to transfer a vehicle which otherwise would be forfeit by reason of her brother’s drug dealing conviction) was dismissed in her absence.  The Court of Appeal set aside that determination and ordered a rehearing.

[8]      If however a defendant simply fails to turn up, that is entirely another matter. The hearing may proceed by what is called “formal proof”.  A conviction may be entered notwithstanding the defendant’s absence.3     Here, Constable Marshall was sworn in and gave evidence about the defendant’s conduct.  Conviction and sentence

followed immediately.

1      New Zealand Bill of Rights Act 1990, s 25(e).

2      Lima v R [2011] NZCA 179.

3      Summary Proceedings Act 1957, s 61.

[9]      In this case there are a number of difficulties with Mr Gilbert’s affidavit

explanation.

[10]     First he says that he attended Court and spoke to a male police prosecutor, Sergeant Chris Flood, he being the only other person present.  In fact, as the Justices’ notes of evidence show, the prosecutor that day was the female Sergeant Miriam Charmley.

[11]     Secondly, he says that he left the Court at 10.30 am, his case not having been called by then.   He does not state why he left so early in the piece.   Ms Prinsloo today advised the Court that Mr Gilbert was unable to give an explanation for his early departure.   Mr Gilbert does not say in his affidavit that court business had finished that day by then.  He also does not state that he made any inquiries about what had happened to his case.

[12]     Thirdly, as a matter of fact, his case was called in the Wairoa courthouse that morning.   The notes of evidence do not record times.   But they record the Court orderly saying, “He’s still not here Your Honour” before the case proceeded.  It is apparent from that that efforts had been made to find Mr Gilbert.

[13]     Fourthly, the courthouse at Wairoa is a very small one.  If a person is inside the courthouse and his case is called, he will know.   There is no room for misunderstanding as to which courtroom is in session.  Or where the hearing would take place.   To that extent, the case here is quite unlike that in Lima.   Mr Gilbert chose either to wait outside (where he was not found and which does not amount to “attendance” on his part) or, much more likely, had already gone by the time his case was called.

[14]     Fifthly, when Mr Gilbert wrote to seek a rehearing on 10 July 2013 he did not say what he now says.   That is, that he attended but that his case was not called. What he said in his letter seeking a rehearing was that he was not notified of the hearing at all.  These versions of events cannot be reconciled.

[15]     Sixthly, there is no doubt that Mr Gilbert was present on 19 December 2012 when his case was remanded to 13 March 2013.  The Justices’ note records that it was remanded to that date so that, as I said before, he could provide the Court with the name of a lawyer.

Conclusion

[16]     For all these reasons I am not satisfied that Mr Gilbert has demonstrated a breach of natural justice or a breach of s 25(e) of the New Zealand Bill of Rights Act

1990.

Result

[17]     Appeal is dismissed.

Stephen Kós J

Solicitors:

Crown Solicitor, Napier

Woodward Chrisp, Gisborne for Appellant