H v Police HC Auckland CRI 2007-404-323

[2008] NZHC 365

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-000323

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         On the papers.

Judgment:      20 March 2008 at 12:30pm

JUDGMENT OF ANDREWS J

[Appellant’s application for deferment of disqualification]

This judgment was delivered by me on 20 March 2008 at 12:30pm

pursuant to r 540(4) of the High Court Rules.

………………………………………..

Registrar/Deputy Registrar

Date:   ………………………………

Party/Solicitor:     H   Immigration Consultancy, Unit 8, 7A Hill Road, Papatoetoe

Meredith Connell, PO Box 2213, Auckland

H V NZ POLICE HC AK CRI 2007-404-000323  20 March 2008

[1]      The appellant has appealed against his conviction on 28 September 2007 on charges of driving with excess breath-alcohol and assaulting a Police Constable in the course of her duty.  He was fined and disqualified from driving for 15 months. The appeal was originally set down to be heard on 18 February 2008 but is now to be heard on 3 June 2008, following the appellant’s request for an adjournment.

[2]      On 26 October 2007 the appellant applied to the District Court at Manukau for the disqualification to be deferred pending hearing of the appeal. On 29 October

2007 a District Court Judge declined to defer the disqualification.  The Judge’s note is as follows:

29/10/07   Appn for deferment of disqualification refused on grounds of public safety.  Def should apply to High Court.

[Signed DCJ]

[3]      Section 107(2) of the Land Transport Act 1998 provides that an appellant who has appealed to the High Court may apply to the District Court for deferral of disqualification pending hearing of the appeal.  Section 107(2A) provides that if the District Court refuses to defer the disqualification, the appellant may appeal against the District Court’s decision to the High Court.

[4]      The appellant has not appealed against the District Court refusal to grant deferment.  A Mr Tuauri has written to the Registrar on his behalf, to make a “formal application for deferment or stay of disqualification”.   The grounds for the “application” are stated to be:

1.There appears to be a honest mistake or misunderstanding on [the appellant’s] part in that following his telephone conversation with [a Court official] last year, he had been under the impression that his disqualification  had  been  deferred  pending  the  outcome  of  the appeal.

2.He wishes to be able to drive again as he is now self-employed and relies very much on his own transport because of the nature of his small business as an immigration consultant.

3.His appeal has been set down for hearing on 3 June 2008, almost three months away.  He would like to be mobile during this period.

[5]      The letter concludes by asking that the matter be referred to a Judge for consideration, without an appearance.

[6]      In response, Mr Hodge on behalf of the Police, notes that the letter to the Registrar is not in the correct form for an appeal.  He records that, in the event the Court is prepared to treat the letter as an appeal against the District Court decision to decline deferment, then the Police abide the Court’s decision.

[7]      Although clearly not in the correct form for an appeal, I am prepared to treat the letter to the Registrar as an appeal.   I therefore turn to consider whether the appeal should be allowed.

[8]      The  appellant’s  Criminal  and  Traffic  History  records  that  prior  to  his conviction on 28 September 2007, the appellant had five previous convictions for driving with excess blood or breath alcohol, in the period 1980 to 1988.  Further, he had convictions for carelessly operating a vehicle, and dangerous driving.

[9]      In the circumstances, I am not persuaded that the District Court Judge was wrong to refuse to defer the operation of the appellant’s disqualification.

[10]     Further, in respect of the appellant’s third ground, the fact that the hearing is now on 3 June 2008 is as a result of the appellant’s own application.  His desire to adjourn  the  hearing of  his  appeal  does  not  constitute  grounds  for  deferment  of disqualification.  There are no other grounds on which deferment is justified.

[11]   Accordingly, the appellant’s appeal against the refusal to defer his disqualification is dismissed.

Andrews   J