Gurney v Police

[2017] NZHC 1581

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2017-441-000021 [2017] NZHC 1581

BETWEEN

PHILIP BARCLAY GURNEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 July 2017
Counsel:	P N Ross for Appellant C R Stuart for Respondent
Judgment:	7 July 2017

JUDGMENT OF COLLINS J

Introduction

[1]      On 9 February 2002, Mr Gurney and his mother attended a concert at the Mission Estate Vineyard in Napier.  They shared a picnic and a bottle of wine while listening to performances by Mr Engelbert Humperdinck and “The Seekers”.  After the concert Mr Gurney was stopped by the police while driving his mother’s vehicle. He underwent a breath alcohol test which produced a reading of 703 micrograms of alcohol per litre of breath.

[2]      Slightly over 15 years later, Mr Gurney was convicted of driving with excess breath alcohol on the night of the concert.1   The delay between Mr Gurney’s alleged offending and his conviction signals that there are unusual features to this case.

[3]      It  is  not  now  possible  to  determine  everything  that  transpired  between

9 February 2002 and Mr Gurney’s conviction on 10 April 2017.   It is, however, possible to conclude that Judge Adeane, when he convicted Mr Gurney, made an

1      New Zealand Police v Gurney [2017] NZDC 7694.

GURNEY v NEW ZEALAND POLICE [2017] NZHC 1581 [7 July 2017]

error of law which requires me to now quash the conviction.  The Judge erred when he failed to appreciate that the District Court no longer had jurisdiction to hear the charge against Mr Gurney because the prosecution did not obtain the consent of the Attorney-General to continue with the proceeding.   I explain the jurisdictional impediment to the District Court hearing this charge in paragraphs [19] to [35] of this judgment.

Background

The court proceedings

[4]      At the time of the offending Mr Gurney, who is a New Zealand trained lawyer, was living and  working in Singapore.   When stopped by the police he provided them with his permanent address in Singapore and with his mother’s Wellington address.  Mr Gurney’s mother’s address is recorded on the information sheet filed in the Napier District Court on 12 February 2002.

[5]      The case was first called in the Napier District Court on 13 February 2002. Mr Gurney arranged for a lawyer to represent him.  The case was transferred to the Auckland District Court for hearing on 14 May 2002.   The court file records his intention to plead guilty.  Mr Gurney was represented by a different lawyer in the Auckland District Court on 14 May 2002.  The court file states the “[defendant] is overseas permanently” and that the file should be transferred back to Napier as the “[defendant] will plead not guilty”.

[6]      The case was called the following day in the Auckland District Court and adjourned to the Napier District Court to be called on 29 May 2002 for a not guilty plea to be entered and a defended hearing date to be allocated.

[7]      Mr Gurney did not appear when the case was called in the Napier District Court on 29 May 2002 nor was he represented by a lawyer.   There is however nothing to suggest Mr Gurney was aware of the 29 May hearing.   Nevertheless, because of Mr Gurney’s failure to appear, a warrant was issued for his arrest.  That warrant  remained  extant  until  16  March  2016  when  it  was  cancelled  by  a Community Magistrate.  I understand Mr Gurney was present in the Napier District

Court on 16 March 2016.  His case was remanded to 6 April 2016 when Mr Gurney pleaded not guilty.

[8]      Mr Gurney’s case was remanded until 19 May 2016.   In the meantime he instructed Mr Ross, who appeared on 19 May and arranged for Mr Gurney’s attendance to be excused.  An adjournment was sought to enable the police to seek legal advice about what should be done.  The case was called again on 11 July 2016, at which time Mr Ross explained that in his opinion there was  a jurisdictional problem with the charge continuing against Mr Gurney.   That issue, which I shall return to in paragraphs [19] to [35] was heard and determined by the Judge on

31 October 2016.2

[9]      The  Judge  concluded  the  case  against  Mr  Gurney  could  continue.    He remanded the case to 9 January 2017 as a “firm fixture”.   Unfortunately, the case could not be heard on 9 January 2017 because of other hearings.  It was remanded to

30 January 2017 and then to 10 April 2017, the date upon which Mr Gurney was convicted.3

[10]     At the hearing on 10 April 2017 Mr Gurney was represented by Mr Ross.  Mr Gurney was not himself present in court as he had succumbed to a bout of food poisoning.  Mr Ross handed a medical certificate to that effect to the Judge at the hearing.

[11]     Mr Gurney has not yet been sentenced.   While it is highly unusual for an appeal against conviction to be heard prior to any sentence being imposed, s 231 of the Criminal Procedure Act 2011 does not expressly require sentencing to take place prior to consideration of an appeal.4

Other evidence

[12]     Mr Gurney filed an affidavit explaining he was unaware his case was being called in the Napier District Court on 29 May 2002 – the day his arrest warrant was

2      New Zealand Police v Gurney DC Napier CRI-2004-041-120, 31 October 2016.

3      New Zealand Police v Gurney above n 1.

4      Cf s 115(3) of the Summary Proceedings Act 1957.  This provision was not carried forward into the Criminal Procedure Act 2011.

issued.  He says prior to that date, on 23 April 2002, he wrote a long letter to the police explaining his circumstances and that his excess breath alcohol reading was likely due to him having consumed a Chinese “Ginseng” tonic.  Mr Gurney says at the time of his alleged  offending he did not know the tonic contained alcohol. Mr Gurney also explained in his letter to the police that he had just been made redundant  and  this  change  in  circumstances  meant  he  was  unable  to  return  to New Zealand in the immediate future.  Mr Gurney did not receive any response from the police.

[13]     Mr Gurney returned to New Zealand on 4 February 2003 to visit his mother. He  left  New  Zealand  soon  thereafter.     In  2004  he  permanently  returned  to New Zealand.  Since returning to New Zealand he has lived at the same address in Auckland.  He has undertaken post graduate law studies at Auckland University and renewed his practicing certificate as a lawyer.

[14]     Mr  Gurney  explained  in  his  affidavit  that  he  has  been  “in  and  out  of New Zealand” many times since 2002.   He also said he has been stopped by the police on three occasions.   On each occasion he handed the police his driver’s licence and no issues arose.  He also renewed his New Zealand passport and drivers licence and has carried on life as normal in New Zealand since returning in 2004.

[15]     On the day before the 10 April 2017 hearing, Mr Gurney travelled from Auckland to Napier and had a meal at a local restaurant.  He says he later became ill and contacted his lawyer early on the morning of 10 April 2017 explaining he was too unwell to attend court.  Mr Gurney obtained a medical certificate to that effect, which Mr Ross handed to the Judge.  Mr Gurney expressed his dismay that the Judge insisted upon proceeding with the hearing in his absence.

[16]     Mr Gurney’s mother has also sworn an affidavit in this proceeding.   She substantially confirms the evidence of her son and adds that in early May 2002 she received a visit from two police officers, who told her they wished to clarify something with Mr Gurney.  Mrs Gurney’s unchallenged evidence was that one of the police officers told her that her “… son had done nothing wrong and was not in

any trouble – or words to that effect”.  Mrs Gurney says she relayed this information

to her son either the same day or the day after the police visit.

[17]     Mr Gurney gave evidence in person before me and was cross-examined by Mr Stuart for the Crown.   His evidence left me in no doubt that when he left New Zealand in February 2002 he fully intended to answer the charge.  After he wrote to the police and his mother relayed to him an assurance from the police that he had not done anything wrong, Mr Gurney believed the matter had come to an end.   This belief was reinforced when Mr Gurney returned to New Zealand and engaged with authorities on numerous occasions without any issue arising from his failed breath screening test on 9 February 2002.  Mr Gurney assured me under oath that he was not aware of the hearing in the Napier District Court on 29 May 2002.  Despite Mr Stuart’s submissions, I am satisfied Mr Gurney’s evidence was truthful.

Grounds of appeal

[18]     Mr Gurney now appeals his conviction on the following three grounds:

(1)The District Court did not have the jurisdiction to hear the case against him by reason of the failure of the prosecution to obtain the approval of the Attorney-General to continue the case against him under s 10B of the Crimes Act 1961.

(2)       The Judge breached Mr Gurney’s right to a fair trial by proceeding in

his absence.

(3)The  Judge  erred  by  not  considering  Mr  Gurney’s  “affirmative defence” that his breath alcohol level was affected by consuming a “Ginseng” tonic.

Period of limitation for certain offences

[19] At the time the charge was brought against Mr Gurney, s 10B of the Crimes

Act was in force. The relevant provisions of that section provided:

10B     Period of limitation

(1)       Except   with   the   prior   consent   of   the   Attorney-General,   no proceedings in respect of an offence to which this section applies, or, where such proceedings have been commenced, no further steps in the proceedings (other than steps subsequent to the trial or hearing) shall be taken after the expiration of 10 years from the date of the commission of the offence.

(2)      This section shall apply to the following offences:

(a)       An offence punishable by a fine only, where the maximum fine that may be imposed in respect of that offence is less than $2,000:

(b)       An   offence   punishable   by   imprisonment,   where   the maximum term of imprisonment that may be imposed in respect of that offence is less than 3 years.

…

[20]     It is accepted the maximum penalty for driving with excess breath alcohol at the time was three months’ imprisonment or a fine not exceeding $4,500.5   It is also accepted that the Attorney-General never gave consent for the proceedings against Mr Gurney to continue.

[21] The purpose of s 10B of the Crimes Act was to ensure the Attorney-General (or the Solicitor-General pursuant to s 9A of the Constitution Act 1986) protected the interests of defendants and the public by ensuring summary cases did not linger indefinitely in courts. The Attorney-General would consider factors, such as the nature of the offence, its seriousness, and the extent and cause of the delay before authorising the continuation of a summary prosecution beyond 10 years from the

commission of the offence.6

[22]     The  Attorney-General’s  consent  was  a  mandatory  requirement  for  the

proceeding against Mr Gurney to continue after 9 February 2012.7

5      Land Transport Act 1998, 56(3)(a).

6      Refer Oates v Attorney-General (Cth) (1998) 84 FCR 348 in relation to a similar provision in s 1316 of the Corporations Act 2001 (Cth). The decision of the Federal Court of Australia was

successfully appealed to the High Court of Australia on a different point: Attorney-General (Cth)

v Oates (1999) 198 CLR 162.

7      Balchin v R [2016] NZCA 563; see also by comparison R v Arundell [1998] VSCA 102, [1999] 2

VR 228, (1998) 104 A Crim R 78 at 105-106; R v Tait [1996] 1 VR 662, (1995) 80 A Crim R 374 (Vic CA) concerning time limits for prosecuting certain sexual offences in s 48(6) of the Crimes Act 1958 (Vic).

[23] Section 10B was repealed by s 6 of the Crimes Amendment Act (No 4) 2011 with effect from 1 July 2013.

[24] Mr Ross submitted to the Judge on 31 October 2016 that notwithstanding its repeal, the effect of s 10B was that the District Court had no jurisdiction to hear the charge against Mr Gurney.

[25]     In his perfunctory six-paragraph decision the Judge said:8

Mr  Gurney now argues  that  by virtue  of  [the]  limitation  provisions the matter cannot proceed further.   If he is correct then of course the law constitutes a rogues’ charter in this … respect.

[26]     The Judge said that the provisions of s 399 of the Criminal Procedure Act

2011 “now prevail”.9   To understand this line of reasoning it is necessary to briefly explain the key transitional provisions of the Criminal Procedure Act.

[27]     Under s 397 of the Criminal Procedure Act, proceedings commenced before 1

July 2013 (the commencement date of the relevant provisions) and which have not been finally determined before that date must continue in accordance with the law as it was before 1 July 2013.   However, s 399 creates an exception to s 397.   The relevant parts of s 399 provide:

399      Absconding defendants

(1)       This section applies if—

(a)       proceedings were commenced (in any of the ways described in section 397(3)) against a defendant for an offence before the commencement date; and

(b)       before, on, or after the commencement date the defendant absconded; and

(c)       the defendant is not located until more than 6 months after the commencement date.

(2)      The proceedings must be conducted in accordance with the law as it is after the commencement date.

8      New Zealand Police v Gurney, above n 2, at [4].

9 At [5].

[28]     It is accepted by both parties that the requirements of s 399(1)(a) of the Criminal Procedure Act are satisfied.  Mr Gurney does not accept, however, that he “absconded” within the meaning of s 399(1)(b), or that he was not “located” within the meaning of s 399(1)(c).

[29]     The Judge held that Mr Gurney had absconded from the Court’s jurisdiction and that “[b]y virtue of s 399 therefore the matter is able to proceed”.10

[30] There are two material difficulties with the Judge’s approach. The first difficulty concerns the way the Judge applied s 399 of the Criminal Procedure Act. The second difficulty concerns the Judge’s interpretation of the effect of s 10B of the Crimes Act.

[31] Section 399 may have the ability to override s 10B if all of the requirements in s 300(1) are satisfied. However, Mr Gurney has raised sufficient doubt as to whether or not he absconded within the natural and ordinary meaning of that verb.11

This is based on the following evidence:

(1)       At the time of the offending Mr Gurney gave the police his address in

Singapore and his mother’s Wellington address.

(2)Mr Gurney instructed lawyers to act for him at the 13 February 2002 hearing in Napier and the 14 May 2002 hearing in Auckland.

(3)On 23 April 2002  Mr Gurney wrote a letter to the police.   This explained the circumstances of the offending including that he had consumed a Chinese “Ginseng” tonic, which is intended to help with travel fatigue and insomnia, and he was unaware this contained alcohol.  He also stated that he was no longer in a position to return to New Zealand as he had been made redundant.  He never received a

response to this letter.

10     New Zealand Police v Gurney, above n 2, at [5].

11     Della Thompson (ed) The Concise Oxford Dictionary (Clarendon Press, 2005); “abscond …

depart … furtively … unlawfully … to avoid arrest”, or to “hide, conceal (oneself)”.

(4)In early May 2002, Mr Gurney received an assurance from the police, through his mother that he had done nothing wrong, or words to that effect.

(5)       Mr Gurney has sworn on oath that he was not aware of the hearing on

29 May 2002.  I accept his assurance.

(6)Mr Gurney has permanently lived in New Zealand since 2004.   He has been stopped by the police and provided his driver’s licence on three   occasions.      He   has   also   renewed   his   legal   practicing certification, drivers licence and passport, and brought a claim before the Disputes Tribunal.

[32]      These actions are the antithesis of an absconder.  He did not attempt to depart furtively or unlawfully.  Nor did he attempt to avoid, hide or conceal himself from New Zealand authorities.  Section 399 of the Criminal Procedure Act could therefore not be relied upon to justify continuing the prosecution against Mr Gurney in the absence of the Attorney-General’s consent.

[33] The second difficulty with the Judge’s approach concerns his interpretation of the effect of s 10B of the Crimes Act. While the presumption that criminal statutes should be strictly construed has waned in favour of textual and purposive interpretation principles,12 courts should nevertheless strive to interpret criminal statutes so as to avoid retrospectively exposing a defendant to criminal liability.13

This principle applies with similar force to mandatory procedural steps in a criminal prosecution that are designed to protect the interests of a defendant.14    The Judge’s

approach ignored this principle.

12     R v Li [2008] NZSC 114, [2009] 1 NZLR 754 at [15] per Elias CJ and [53] and [61], per

Blanchard, Tipping, McGrath and Wilson JJ.

13     Y (SC 40/2013) v R [2014] NZSC 34, [2014] 1 NZLR 724 at [25], per William Young J.

14     Limitation Act 1999, s 7; New Zealand Bill of Rights Act 1990, ss 25 and 27; R v Hallett [2013] NZHC 1076 at [4] and [5]. See also the United States Supreme Court decision in Landgraf v USI Film Products 511 US 244 (1994) at 266 citing Ursery v Turner Elkhorn Mining Co 428 US

1 (1976), where it was held that due process rights should not be compromised by retrospective legislation.

[34] The failure of the police to comply with the mandatory requirement of s 10B of the Crimes Act meant that from 9 February 2012 the District Court no longer had jurisdiction to hear the prosecution case against Mr Gurney unless the Attorney- General first granted his consent to the prosecution continuing.

[35] The repeal of s 10B of the Crimes Act with effect from 1 July 2013 is of no assistance to the Crown because the District Court ceased to have jurisdiction from

9 February  2012,   absent   the  Attorney-General   granting   his   consent   for   the proceeding to continue.

[36] In light of my analysis I am bound to set aside Mr Gurney’s conviction. It is accordingly not necessary to engage with the other grounds of appeal summarised in paragraph [18]. Nor is it necessary to decide if s 399(1)(c) of the Criminal Procedure Act is engaged in this case.

Result

[37]     The appeal is allowed.  The conviction entered by Judge Adeane on 10 April

2017 is quashed.

D B Collins J

Solicitors:

Crown Solicitor, Napier for Respondent