Green Transport Limited v Police
[2023] NZHC 990
•1 May 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2022-419-000085
[2023] NZHC 990
BETWEEN GREEN TRANSPORT LIMITED
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 April 2023 Appearances:
J Ding for Appellant
P Noorland for Respondent
Judgment:
1 May 2023
JUDGMENT OF VENNING J
This judgment was delivered by me on 1 May 2023 at 11.45 am.
Registrar/Deputy Registrar
Date……………
Solicitors: Hamilton Legal, Hamilton
Le Pine & Co, Taupo
Counsel: J Ding, Auckland
GREEN TRANSPORT LIMITED v NEW ZEALAND POLICE [2023] NZHC 990 [1 May 2023]
[1]Green Transport Limited (Green Transport) faced two infringement notices:
(a)exceeding maximum gross mass limit, maximum penalty of $10,000;1 and
(b)breached critical condition of overweight permit, maximum penalty of
$5,000.2
[2] The matter was first called in Taumarunui District Court on 21 April 2022 and adjourned for a formal proof hearing. At the rescheduled date of 9 June 2022, Mr Gotlieb appeared for the appellant. The case was adjourned and scheduled to be called again on 18 August 2022. When the case was called on 18 August 2022 there was no appearance by Green Transport. The Police sought to formally prove the infringements. The Judge agreed and found the infringements proved.
[3] Green Transport then applied for a rehearing in the District Court. In a ruling delivered on 1 November 2022 Judge Northwood declined the application for rehearing.3 The Judge considered that there was no reasonable excuse for Green Transport’s non-attendance on 18 August 2022 so that the grounds for granting the application pursuant to s 126(6) of the Criminal Procedure Act 2011 (CPA) were not satisfied. Nevertheless, the Judge went on to consider the interests of justice and concluded that the interests of justice did not support a rehearing either. The applicant could have reasonably been expected to ensure that the onboard scale was accurate. It was unable to rely on a total absence of fault defence. For those reasons the Judge declined the application for rehearing.
[4] Green Transport then filed a notice of general appeal in this Court on 1 November 2022. The decision appealed against was stated to be: “Ruling declining an application for re-hearing,” and the grounds of the appeal were:
His Honour Judge Northwood erred in considering the application for re- hearing and finding there was no reasonable excuse for non-attendance at the
1 Land Transport Act 1998, s 43; Land Transport Rule: Vehicle Dimensions and Mass 2016, cls 2.1(2) and 4.2(2)(b); and Land Transport (Offences and Penalties) Regulations 1999, reg 4(6).
2 Land Transport Rule: Vehicle Dimensions and Mass 2016, cls 2.1(2), and 5.5(1)(a), and Land Transport (Offences and Penalties) Regulations 1999, reg 4.
3 Green Transport Ltd v NZ Police [2022] NZDC 21386.
hearing on 18 August 2022, and it was not in the interests of justice to order the re-hearing.
[5] At the outset of the hearing I raised with Ms Ding whether there was jurisdiction for this Court to hear the appeal against the decision declining the rehearing, particularly given the Court of Appeal authority of Police v Norman.4 In that decision the Court confirmed there was no right of appeal to the then Supreme Court from a refusal to grant a rehearing.
[6] Ms Ding submitted there was jurisdiction, noting the provisions in the CPA were different to the former provisions in the Summary Proceedings Act 1957 which had been referred to by the Court of Appeal in Police v Norman. Further, Ms Ding referred to a decision of Duffy J, France v Police,5 which she submitted supported the possibility of a general appeal to this Court from a decision not to grant a rehearing in the District Court.
[7] Despite Ms Ding’s submissions I was satisfied there was no jurisdiction. However, just after the Court had commenced delivering an oral judgment at the conclusion of the hearing Ms Noorland quite properly intervened and indicated that she had just, during the course of the hearing, located reference to a decision of Osborne J under the relevant provisions of the CPA, Shackleton v Police,6 where the Judge appeared to have assumed jurisdiction to consider an appeal against a decision declining a rehearing. On that basis I formally reserved the decision in order to consider the decision of Shackleton.
[8] I have now had the opportunity to consider Osborne J’s decision in Shackleton. For the reasons that follow, I have concluded that if the decision is to be taken as suggesting there is a right of general appeal to the High Court from a decision of the District Court declining a rehearing of a criminal matter, then with respect, it is wrong. There is no jurisdiction for an appeal to this Court against a decision in the District Court to refuse an application for a rehearing.
4 Police v Norman [1975] 1 NZLR 391.
5 France v Police [2015] NZHC 2011.
6 Shackleton v Police [2020] NZHC 384.
[9] The starting point is the former s 115(1) of the Summary Proceedings Act 1957 which was before the Court of Appeal in Police v Norman. In that case the Court of Appeal confirmed and approved previous decisions of the then Supreme Court in Tuohy v Police, and Burton v Police, namely that the right of general appeal did not extend to the refusal of a rehearing.7 There was no jurisdiction to entertain an appeal against the refusal to grant a rehearing.
[10]At the time s 115(1) of the Act read:
Except as expressly provided by this Act or by any other enactment, where on the determination by a Magistrate’s Court of any information or complaint any defendant is convicted or any order is made other than for the payment of costs on the dismissal of the information or complaint, or where any order for the estreat of a bond is made by any such Court, the person convicted or against whom any such order is made may appeal to the Supreme Court.
[11]Section 115(1) of the Summary Proceedings Act was amended in 1998 to read:
115 Defendant’s general right of appeal to the High Court
(1)Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint and–
(a)Convicts any defendant; or
(b)Makes any order, including–
(i)An order for repayment of costs; or
(ii)An order declining an application for the payment of such costs; or
(iii)An order for the estreat of a bond–
the person convicted or against whom the order is made may appeal to the High Court.
[12] The amended section was considered by Chisholm J in Heenan v Police.8 Mr Heenan had been found guilty on a number of charges under the Land Transport Act and an assault charge under the Crimes Act 1961. Before he was sentenced in the District Court Mr Heenan had made an application to set aside the judgment and for a rehearing. The Judge rejected the application to set aside the judgment or to grant the
7 Tuohy v Police [1959] NZLR 865; and Burton v Police [1961] NZLR 698.
8 Heenan v Police HC Invercargill AP15/02, 4 February 2003.
rehearing. Mr Heenan then lodged an appeal against the conviction and sentence and a separate appeal against the refusal to grant a rehearing. The appeal against refusal to grant a rehearing came before Chisholm J. His Honour referred to the Court of Appeal authority of Police v Norman and then noted the amendment to the Summary Proceedings Act, before going on to state:9
Does this amendment affect the authoritative status of Police v Norman? I do not think so. Once the Judge determined the informations laid against Mr Heenan (by finding them proved) and convicted him, a right of appeal to the High Court pursuant to s115(1)(a) became vested in Mr Heenan. It was not the intention of the amendment to confer a further right of appeal to the High Court in a situation where an application for rehearing was declined. In other words, I am bound by Police v Norman.
[13] Chisholm J then went on to note that the absence of jurisdiction did not give rise to a situation where the appellant was left without a remedy as there was the substantive right of general appeal against the conviction and sentence.
[14] The CPA has replaced the Summary Proceedings Act. Three sections are relevant: ss 125, 126 and 128 in particular.10 The application for a retrial or rehearing is made under s 125 or s 126 as appropriate. Importantly however, s 128 provides:
128 Effect of application for retrial or rehearing on rights of appeal
(1)A defendant who applies for a retrial of a charge under section 125 must not appeal his or her conviction unless that application for a retrial is denied.
(2)A defendant who applies for a rehearing under section 126 must not appeal his or her sentence unless that application for a rehearing is denied.
(3)If an application for a retrial or rehearing is made under section 125 or 126, the time period for filing an appeal under Part 6 is suspended until the application is determined.
(4)Subsections (1) and (2) do not limit any right of appeal in relation to a further conviction, sentence, or order entered, imposed, or made at the defendant’s retrial or rehearing.
[15] Ms Ding referred to that section and submitted that it provided for an appeal. Ms Ding is correct. The section does provide for an appeal but the right of appeal
9 At [5].
10 As this case involves infringement offences, a conviction is not entered, but s 126 of the CPA applies: s 375 CPA.
provided for is not against a refusal to grant a rehearing, rather the right of appeal is against the extant conviction and/or sentence. Section 128(3) extends the time for appealing the conviction or sentence until the District Court has determined the application for rehearing, but it does not provide for an appeal against the rehearing decision.
[16] Appeal rights are created by statute. The appeal rights under the CPA are found in sub-part 6. None of the appeal rights in sub-part 6 of the CPA provide for a right of appeal against a refusal to grant a rehearing.
[17] The reasoning approved in Police v Norman and applied by Chisholm J in Heenan still applies, despite the change in the statutory provisions. The short point is that as there is a substantive right of general appeal against conviction and/or sentence there is no right of appeal against a refusal to grant a rehearing.
[18] As noted, Ms Ding referred to France v Police.11 In that case Mr France had been convicted of failing to ensure a taillight was working, driving without a driver’s licence, and wearing a damaged helmet while operating a moped. He had been convicted by two Justices of the Peace, and had applied for a rehearing in the District Court, which was ultimately declined by a District Court Judge. Mr France then filed a notice of general appeal in the High Court. Duffy J accepted the respondent’s submission that this Court lacked jurisdiction to hear and determine the appeal. The District Court was the appropriate appeal court. Ms Ding relied on a reference in the decision to a right of appeal against the rehearing decision and suggested that supported her argument there was jurisdiction.
[19] In the course of her decision Duffy J referred to a previous decision involving Mr France,12 as follows:13
[21] … The appeal involved very similar circumstances to the current appeal. Mr France was found guilty of driving while forbidden and failing to provide information by two JPs in the District Court. An application for a rehearing was declined by Judge Andrée Wiltens. An appeal against this decision was dismissed by Brown J.
11 France v Police, above n 5.
12 France v R [2015] NZCA 282.
13 France v R, above n 5.
[22] The Court of Appeal stated that the correct procedure under s 230 of the CPA would have been for the appeal to go to the District Court. It refused to grant an extension of time to bring the appeal.
[20] Although the passage from Duffy J’s judgment suggests that Brown J heard an appeal against the District Court refusal to grant a rehearing, a reading of the Court of Appeal decision confirms that while Mr France was declined a rehearing in the District Court the appeal heard and considered by Brown J was a general appeal against his conviction and sentence, rather than an appeal against the decision not to grant a rehearing.
[21] Nothing in the decision of the Court of Appeal in France v R, nor Duffy J’s decision, properly analysed, supports an argument this Court has jurisdiction to entertain an appeal on refusal of an application for a rehearing.
[22] That leaves the decision of Osborne J in Shackleton v Police,14 which Ms Noorland discovered towards the end of the current hearing before this Court. Mr Shackleton had filed an appeal in which he sought to challenge both the refusal of the rehearing and the conviction. It does appear that in that case the Judge assumed the High Court had jurisdiction to consider the appeal against a rehearing. However it is obvious from the judgment that the issue of jurisdiction was not drawn to the Judge’s attention.
[23] Next, the Judge was also obviously concerned at the procedural background and the length of time the appellant had been grappling with the complicated provisions of the Road User Charges legislation. He also had a substantive appeal against conviction before him.
[24] Given the need for finality (and I detect some sympathy for the position Mr Shackleton found himself in) the Judge dealt with the substantive merits of the appeal. As the Judge had a general appeal before him it was strictly unnecessary for him to deal with the rehearing matter.
14 Shackleton v Police, above n 6.
[25] However, ultimately Osborne J made orders granting a rehearing, but also allowing the appeal. Procedurally that would seem to have created somewhat of a difficulty. If the appeal against the decision to grant a rehearing was allowed, any rehearing should have proceeded in the appropriate court, which would have been the District Court.
[26] I consider the case can be restricted and be confined to its facts as the issue of jurisdiction was not referred to the Judge. Further the Judge himself observed:15
The appropriate outcome in relation to the infringement notice under the RUC legislation requires this Court on appeal to view Mr Shackleton’s case very much as a case on its own facts. …
[27] As noted, if it is to be suggested that the case is authority for the proposition that this Court has jurisdiction to hear an appeal against refusal to grant a rehearing in the District Court, then with respect, in my judgment it is wrongly decided and should not be followed.
[28] The case can, in any event, be distinguished from the present case on the short point that there was also a general appeal against conviction before the Court. Osborne J had jurisdiction to deal with that appeal on its substantive merits. There is no such general appeal against the findings on the infringement offences before this Court. As Ms Noorland submitted, if the appellant wished to pursue an appeal against the decision of the District Court finding the infringements proved, and the fines imposed, the full grounds of appeal would need to be set out and the Police would wish to have time to respond to them.
Result
[29] For the above reasons this Court has no jurisdiction to consider the appeal against refusal to grant a rehearing. It is dismissed for want of jurisdiction.
15 At [61].
[30] As noted, this does not mean that Green Transport was without a right of appeal against the findings on the infringement notices. That right of appeal is provided for in Part 6 of the CPA, albeit that because of the procedure that has been followed, it is now out of time.
Venning J
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