H v Police HC Rotorua Cri-2006-463-59

[2006] NZHC 792

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2006-463-000059

H

Appellant

v

THE POLICE

Respondent

Hearing:         10 July 2006

Counsel:        F C Wood for Appellant

A J Gordon for Respondent

Judgment:      10 July 2006

ORAL JUDGMENT OF HON JUSTICE JOHN HANSEN

A        The appeal is allowed and the vehicle is to be returned to the appellant. B      An order that storage charges of $624 be reimbursed to the appellant.

C        A further order of legal costs to the appellant in the sum of $1,300.

REASONS

[1]      This is an appeal against the order of Judge McGuire in the District Court ordering the confiscation and sale of a motor vehicle.  On the basis of that order the vehicle was seized.   It transpires however that in fact there was no jurisdiction to

make the order that was made by the Judge.

H V POLICE HC ROT CRI-2006-463-000059  10 July 2006

[2]      The appellant had a previous conviction pursuant to s57 of the Act, being a person under 20 with excess breath alcohol.  That is not a qualifying offence under s129(1) so therefore the jurisdiction that arises within the balance of that section did not arise. Although it is not entirely clear it appears that the police may well have advised the Judge incorrectly in this regard.

[3]      Accordingly the appeal is allowed and the vehicle is to be returned to the appellant.   There is an order that  storage charges of $624 be reimbursed to the appellant.  There will be a further order under the Costs in Criminal Cases Act that there will be legal costs to the appellant in the sum of $1,300.

[4]      In the circumstances I will not make any order in relation to it being paid by anyone other than the normal order of the Department for Justice.

Solicitors:

Davys Burton, Rotorua for Appellant

Gordon Pilditch, Rotorua for Respondent