H v Police HC Hamilton CRI-2006-419-113

[2006] NZHC 1240

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2006-419-113

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Counsel:         R M McLeod for Appellant

S-L Litt for Crown

Judgment:      17 October 2006

ORAL JUDGMENT OF BARAGWANATH J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

Ms R M McLeod, Hamilton

H V NEW ZEALAND POLICE HC HAM CRI-2006-419-113  17 October 2006

[1]      The appellant was charged in the District Court at Te Kuiti with driving a vehicle on a road at a speed exceeding 100 kph being the applicable speed limit.

[2]      Discussions  between  the  appellant’s  counsel  Ms McLeod  and  a  senior constable of police were recorded correctly in Ms McLeod’s letter of 24 August

2006 to the Registrar of the District Court which is in the following terms:

I have  been  in discussion  with S/Constable Kevin  Hearfield  today  with regard to this matter.  S/Constable Hearfield has agreed to reduce the alleged speed that my client is charged with from 121 km/h to 118 km/h.  On this basis the intimated not guilty plea can be vacated and a guilty plea entered.

This will reduce the demerit points to 20 and the fine to $120.00.

The Court will need to ensure that LTNZ is advised of the adjusted demerit points to be attached to Mr H  ’s licence.

Please excuse counsel’s appearance and deal with this matter in my absence on this letter.

Your assistance will be much appreciated.

[3]      In reliance upon the agreement with the senior constable Ms McLeod did not appear before the Justices and the appellant represented himself.  There is no note of the reasons for the Justices’ decision which was to endorse the police summary of facts  that  the  vehicle  had  been  travelling  at  121 kph  and  that  the  appropriate infringement fee was $170.  The Justices are to be taken to have adopted the 121 kph figure with a consequential imposition of 35 demerit points and an infringement fee of $170.

[4]      On  the  present  appeal  Crown  counsel  properly  acknowledges  that  the Justices’ decision cannot stand.  While they could not be bound by the agreement between counsel and the police if they were minded to reject the agreement they ought to have adjourned the hearing to give the appellant the opportunity for his counsel to represent him.

[5]      It follows that there has been a procedural error which requires correction. That could be done either by this Court’s allowing the appeal and referring the matter back to the District Court or more efficiently as both counsel agree for this

Court to exercise jurisdiction under s 12 of the Inferior Courts Procedure Act 1909 and make orders that should have been made by the Justices given their election not to adjourn the hearing but to proceed with it.

[6]      In preparation for today’s hearing counsel had conferred and reached what could only be a tentative agreement that the speed should be reduced from 121 kph to 118 kph and the demerit points to 20 but leaving a fine of $170 unchanged.  I say tentative because just as the Justices were not bound by the agreement with the police so this Court is not bound by the agreement between counsel.  I can see no good  reason  not  to  give  effect  simply  to  the  total  package  agreed  between Ms McLeod and the senior constable.

[7]      The record will be amended to record the speed as 118 kph the demerit points as 20 and the fine as $120.

[8]      Ms McLeod does not ask for costs.

W D Baragwanath J