Harris v Police HC Christchurch CRI-2011-409-000092

[2011] NZHC 1958

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000092

KENNETH HARRIS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 December 2011

Appearances: A Kelland for Appellant

K Bell for Respondent

Judgment:      6 December 2011

RESERVED JUDGMENT OF CHISHOLM J

A        Time for appealing extended.

B        The appeal is dismissed.

Introduction

[1]      This  appeal  against  a  12  month  disqualification  arises  out  of  relatively unusual circumstances.   Having pleaded guilty to drink driving, driving whilst forbidden,  and  dangerous  driving,  the  appellant  was  (amongst  other  things)

disqualified from driving for six months.  Although the appellant had also pleaded

HARRIS V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000092 6 December 2011

guilty to a charge of failing to stop, the Judge indicated that he was only going to convict the appellant  on that charge  and that  it was ―adjourned until tomorrow morning at 9 a.m.‖.

[2]      Sentencing on the failing to stop charge was adjourned to enable the police prosecutor and counsel for the appellant (not Ms Kelland) to check whether there was a mandatory 12 months disqualification because this was the appellant’s third conviction for failing to stop. According to the transcript the Judge said:

...the accused need not appear but as long as he, well it might be better to have him here do you think?

Whether  or  not  the  appellant  was  required  to  appear  the  next  day  was  left unresolved.  Before he left the Court the appellant was handed a notice advising that he was disqualified from holding or obtaining a driver’s licence for six months from

10 November 2010.

[3]        The following morning the prosecutor and counsel for the appellant duly appeared.   For reasons  that are not apparent the matter was  then dealt with in chambers.   The prosecutor and counsel were in agreement that an additional 12 months disqualification was mandatory and defence counsel seems to have been under the impression that attendance by the appellant had been excused.   In any event the appellant was not present when an additional 12 months disqualification was imposed by the Judge in chambers.

[4]      In an affidavit sworn in support of this appeal the appellant deposes that he was unaware of the additional disqualification until he was stopped by a traffic officer on 2 June 2011 and charged with various charges, including driving whilst disqualified.  The appellant states that he thought the disqualification had ended on

10 May 2010.  Although the appeal was adjourned last month by French J to enable the respondent to adduce evidence from the appellant’s trial counsel, no evidence has

been presented.[1]

This appeal

[1] Ms Bell indicated from the Bar that the appellant’s trial counsel had no recollection of the events under consideration and was not able to assist.

[5]      Being unaware of the situation until 2 June 2011, the appellant did not take any steps to challenge the 12 months disqualification until the appeal period had expired.  He asks the Court to extend the time for appealing, and that application is granted.

Argument for appellant

[6]      Sentencing of the appellant in chambers, and in his absence, gave rise to a breach of natural justice.  He was not notified that he should be present and did not waive his right to be present.  He was entitled to be present at sentencing, especially where the additional disqualification had grave consequences for him.[2]

[2]Ms Kelland indicated that after he was arrested on 2 June 2011 he was initially refused bail and remained in custody for over a month.

[7]      Apart from being wrong in principle, the sentencing in chambers constituted a breach of open justice.  Openness ensures fairness, judicial accountability, and is critical to the public confidence in the administration of justice:   Television New Zealand Limited v R.[3]  The right to a public and fair hearing is also guaranteed by s 25(a) of the New Zealand Bill of Rights Act 1990 and reinforced by Article 14(1) of the International Covenant on Civil and Political Rights to which New Zealand is

a party.

[3] Television New Zealand Limited v R [2001] 1 NZLR 641 at [18].

[8]      An abuse of process has occurred, and the Court should rectify that abuse. The sentence of 12 months disqualification imposed on 11 November 2011 should be quashed.

Police response

[9]      While the appellant’s belief as to the time when the disqualification ended is relevant to the charge arising from the appellant’s driving on 2 June 2011, it is not

relevant to this sentence appeal.   For that reason the respondent decided not to present an affidavit from the appellant’s former counsel.

[10]     At all relevant times the appellant was represented by counsel and he was personally present at the initial sentencing on 10 November 2010.   He was also present  when  the  Judge  indicated that  the  penalty for  failing  to  stop  would  be considered the following morning.  The appellant’s absence the next morning when the additional 12 months disqualification was imposed does not invalidate the sentence which was mandatory.

[11]     While it would have been best practice for the appellant to have been present on 11 November 2011 when the additional penalty was imposed, s 61(b)(i) and (ii) of the Summary Proceedings 1957 authorised the Judge to proceed in the absence of the accused at that time, and the fact that sentencing was completed in chambers does not invalidate the sentence.

Discussion

[12]     I agree with Ms Bell that for the purposes of this appeal the focus needs to be on the sentence of 12 months disqualification, including the circumstances surrounding its imposition, rather than the consequences that later arose.  However, I will be returning to the consequences.

[13]     Given that the 12 month disqualification was mandatory, the only issue is whether the absence of the accused or the fact that the disqualification was imposed in chambers requires this sentence appeal to be allowed.  There does not seem to be any authority directly in point, at least in the context of a summary hearing.

[14]     Section 376(1) of the Crimes Act 1961 provides:

376     Presence of the accused

(1)       Every accused person shall be entitled to be present in Court during the whole of his trial, unless he misconducts himself by so interrupting the proceedings as to render their continuance in his presence impracticable.

...

In R v Smail[4]  the Court of Appeal held that the term ―trial‖ extends to sentencing matters and that Mr Smail should have been present at a chambers conference during which a sentencing indication was given.

[4] R v Smail [2008] 2 NZLR 448 at [61]

[15]     Because there is no direct equivalent of s 376(1) in the Summary Proceedings Act, the Smail decision is of limited assistance to the extent that it relies on that provision.  However, the Court’s comments relating to s 25(e) of the New Zealand Bill of Rights Act 1990 are highly relevant.  Section 25(e) provides:

25       Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

...

(e)      the right to be present at the trial and to present a defence.

Again the Court accepted that an extended definition of ―trial‖ should be utilised[5] and  that  sentencing  should  be  regarded  as  part  of  the  trial.    On  that basis  the appellant had the right, in terms of s 25(e),  to be present at his sentencing, including the component that took place the following morning.

[5] At [62]

[16]     Having reached that conclusion I need to consider whether this right needs to be re-visited by virtue of any provisions in the Summary Proceedings Act.

[17]     Ms Bell relied on s 61(b)(i) and (ii):

61       Powers of Court when defendant does not appear

In any case where a summons has been served on the defendant a reasonable time before the hearing, or the defendant has been released on bail to attend

personally at the hearing, and at the hearing only the informant appears, the following provisions shall apply:

...

(b)      If the offence charged is not one in respect of which the defendant is entitled to elect to be tried by a jury, then—

(i)       If the defendant is liable on conviction to a sentence of imprisonment or if, following his arrest, he has been released on bail to attend personally at the hearing, the Court may proceed with the hearing, or may issue a warrant in the prescribed form to arrest the defendant and bring him before a Court, or may adjourn the hearing to such time and on such conditions as the Court thinks fit:

(ii)      In any other case the Court may proceed with the hearing or may adjourn the hearing to such time and on such conditions as the Court thinks fit.

...

In my view this provision does not have any application.   This is not a situation where the defendant failed to appear.  To the contrary, he was present at the initial phase of the sentencing and was represented by counsel the following morning.

[18]     Possibly s 65 is closer to the mark, but even this provisions is not directly in point:

65       Court to proceed when both parties appear

Where at the hearing of any charge both the informant and the defendant appear, the Court shall proceed with the hearing:

Provided that, if the defendant is not personally present, the Court may, if it thinks fit, adjourn the hearing to such time and place and on such conditions as it thinks fit to enable him to be present, or, if he is liable on conviction to a sentence of imprisonment, may issue a warrant in the prescribed form to arrest him and bring him before the Court.

In some situations this section might authorise a Judge to proceed in the absence of the defendant.   But I do not think that it can provide an answer to the appellant’s argument that s 25(e) of the Bill of Rights Act entitled him to be present for the whole of the sentencing process in this case.

[19]     For those reasons I am satisfied that the appellant should have been present when the additional 12 months disqualification was imposed.  Moreover, s 25(a) of the Bill of Rights Act, which confers the right to a fair and public hearing, required the sentencing process to be completed in open court, not in chambers.

[20]     Having reached those conclusions the next step is to consider whether any relief  should  be  granted  to  reflect  these  breaches.    This  turns  on  s 121  of  the Summary Proceedings Act which relevantly provides:

121     High Court to hear and determine appeal

...

(3)      In the case of an appeal against sentence, the High Court may—

(a)      Confirm the sentence; or

(b)       If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)        Quash  the  sentence  and  either  pass  such  other sentence warranted in law (whether more or less severe) in substitution therefore as the [High Court] thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence   could   have   dealt   with   him   on   the conviction; or

(ii)      Quash  any  invalid  part  of  the  sentence  that  is severable from the residue; or

(iii)      Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

(4)      In the case of an appeal against an order, the High Court may—

(a)      Confirm the order; or

(b)      Set it aside; or

(c)       Quash  it  and  make  such  other  order  warranted  in  law (whether more or less severe) in substitution therefore as the Court thinks ought to have been made; or

(d)      Vary, within the limits warranted in law, the order or any part of it or any condition imposed in it.

[21]     For the purposes of subs (3)(b) the disqualification was clearly within the District Court’s jurisdiction:   indeed, the District Court was required  by law to impose the disqualification.   Under those circumstances the disqualification could not be described as ―clearly excessive‖ or ―inappropriate‖.   Nor is there any suggestion that the offender’s character or personal history were not before the Court or that there was any error as to the facts.

[22]     In terms of subs (4) the disqualification would qualify as an ―order‖.  But the Court has a discretion as to whether any of the steps listed in (a) – (d) should be taken and I am satisfied that it would be contrary to the public interest to set aside (or quash) the mandatory disqualification, there being no suggestion that it should not have been imposed in this case.  While the breaches of the Bill of Rights Act were unfortunate, and should not be condoned, I do not believe that they require this appeal to be allowed and relief to be granted.

[23]     Having  said  that,  however,  I  should  add  some  further  comments.   As  I perceive it, the underlying objective of this appeal is to obtain relief that might ultimately provide a defence to the charge of driving whilst disqualified that arose on

2 June 2011.  While that charge is not currently before this Court, it is sufficiently related to this appeal for me to make some observations.

[24]     Mens rea is an essential ingredient of driving whilst disqualified:   Millar v Ministry of Transport.[6]   On the information before this Court that element could not be proved beyond reasonable doubt.  Under those circumstances it would seem to be pointless for that charge to be pursued any further (assuming that it has not already been  heard), and  I strongly recommend  that  steps  be taken  to  have  the charge

withdrawn.

Result

[6] Millar v Ministry of Transport [1986] 1 NZLR 660 per Cooke P, Richardson J at 671 and Casey J at

679.

[25]     Time for appealing is extended.   However, the appeal against sentence is dismissed. The preceding paragraph is to be brought to the attention of the police.

Solicitors:

A Kelland, P O Box 8707, Christchurch

K Bell, Raymond Donnelly, P O Box 533, Christchurch