Heukels v District Court at Masterton HC Wellington CIV 2010-435-141
[2010] NZHC 2014
•4 November 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2010-435-141
IN THE MATTER OF an application for Judicial Review
BETWEEN LEOPOLD ALEXANDER HEUKELS Plaintiff
ANDTHE DISTRICT COURT AT MASTERTON
First Defendant
ANDTHE NEW ZEALAND POLICE Second Defendant
Hearing: 3 November 2010
Counsel:J K W Blathwayt and J M Elliott for Plaintiff (First Defendant abides the decision of the Court) S E McKenzie for Second Defendants
Judgment: 4 November 2010
JUDGMENT OF RONALD YOUNG J
Introduction and Background
[1] On 14 July 2009 Mr Heukels was involved in an accident in Carterton in which a woman died. Police investigated the accident and on the 1 January 2010 they laid an information alleging that he had carelessly driven a car causing death. This crime is a summary offence only (Land Transport Act 1998, s 38).
[2] However the information said it was laid indictably and that it was an offence punishable “indictably”. Eventually the police realised their mistake but it was too late (after six months) to lay an alternative information. When the plaintiff tried to
have the information dismissed as a nullity the police sought an amendment. The
LEOPOLD ALEXANDER HEUKELS V THE DISTRICT COURT AT MASTERTON AND ANOR HC WN CIV 2010-435-141 4 November 2010
District Court Judge refused to strike out the information and amended it so that it appeared as a summary information.
[3] In these judicial review proceedings the plaintiff says the Judge erred in law in that he failed to find:
a) the information was laid as an indictable charge;
b)section 172(2) of the Summary Proceedings Act 1957 prevents such an information being amended to a summary information;
c) section 204 of the Summary Proceedings Act 1957 therefore had no application in these circumstances.
[4] In submissions the plaintiff added this point as an alternative to the s 172(2) submissions. If s 172(2) did not apply then the information was a nullity and s 204 could not save it.
[5] Thus the plaintiff says that the Judge made errors of law.
[6] The police have filed an affidavit in these proceedings from Detective Sergeant Van Woerkom. He was the detective in charge of the investigation. He says he instructed another officer to lay the information indictably believing, wrongly, that the charge could be laid indictably.
District Court decision
[7] In the District Court the rationale for the Judge’s conclusion that the information was not a nullity and that he could amend it was that the information was “in substance” laid as a summary information. The Judge concluded that only a minor amendment to the information was required to ensure the information complied with Form 1 in the Summary Proceedings Act (the form for summary informations) in all respects. He thought significant the fact that the information (correctly) asserted it had been laid within six months, consistent with a summary charge. He considered, therefore, pursuant to s 204 that the information was not a
nullity. A simple error had been made which could be corrected by amendment. He concluded there had been no miscarriage of justice and amended the information to delete the words “indictably” and substitute the words “summarily”.
Submission and Discussion
[8] It is common ground that an information alleging careless driving causing death is a summary only information. Such an information must therefore be in Form 1 of the Summary Proceedings Act. Form 1 provides as follows:
Form 1
Information or complaint where defendant is to be proceeded against summarily
Section 15
I, [Full Name], of [Address, occupation], say on oath that (*I have just cause to suspect, and do suspect, that) (*within the previous (6) months, namely) on the day of 19 , at, [Full Name], of [Address, occupation], *who was born on the day of 19 , [Here set out the substance of the offence or matter of complaint] (*being an offence punishable summarily). [Here add section and statute applicable.]
..........................
[Signature of Informant or
Complainant]
Sworn before me at this day of 19
..........................
District Court Judge, Justice of the Peace, [[Community Magistrate,]] Registrar (not being a constable).
Delete if inapplicable.
[9] An information where a defendant is to be proceeded against by indictment is in Form 2. It provides:
Form 2
Information where defendant is to be proceeded against by indictment
Section 145(2)
I, [Full Name], of [Address, occupation], say on oath that (*I have just cause to suspect, and do suspect, that at on [Full Name], of [Address, occupation], *who was born on the day of 19 , [Here set out the nature of the offence], being an indictable. [Here add section and statute applicable.]
..........
[Signature of Informant] Sworn before me at this day of 19
..........
District Court Judge, Justice of the Peace, [[Community Magistrate,]] Registrar (not being a constable).
* Delete if inapplicable.]
[10] The parties agree that s 43 of the Summary Proceedings Act permits amendment to a summary information including the entitlement to convert it to an indictable information. Section 43(1) and (2) provide:
43 Amendment of information where defendant appears
(1) Subject to the succeeding provisions of this section, where the defendant appears to answer a charge to which this Part of this Act applies, the Court may amend the information in any way at any time during the hearing.
(2) Without limiting the generality of the powers conferred by subsection (1) of this section, it is hereby declared that those powers shall include power to amend an information by substituting one offence (whether an indictable offence or a summary offence) for another offence (whether an indictable offence or a summary offence), and shall also include power to amend the information to an information to which Part 5 of this Act applies.
[11] However the plaintiff’s case is that in contrast to s 43(2), s 172(2) specifically prevents the reverse. That is, an information in Form 2 where a defendant is to be proceeded against indictably, cannot be amended to a summary information (Form 1).
[12] Section 172 provides as follows:
172 Amendment of information
(1) The Court may amend any information to which this Part applies in any way, and at any time, during any hearing that is part of the committal proceedings.
(2)Despite subsection (1), no information in form 2 of Schedule 2 may be amended to an information in form 1 of that schedule.
(3)Despite subsection (1), the Court may, at the request of the defendant, adjourn the hearing if it is of the opinion that the defendant would be embarrassed in the conduct of his or her case by reason of an amendment made or proposed to be made under this section.
[13] Thus the plaintiff says the Judge’s amendment in this case was specifically prohibited.
[14] The first issue for discussion therefore is an identification of whether the information in this case is a Form 1 or Form 2 information. The information as filed in the Court was in the format for Form 1 save that at the top of the information the word “summarily” is crossed out and the word “indictably” inserted. At the bottom of the information the word “summarily” is again deleted with the word “indictably” substituted.
[15] The information was therefore an amalgamation of Form 1 and Form 2. It purported to be an information “where the defendant is to be proceeded against indictably”. However it used the Form 1 format in identifying that the offence had been laid within six months of the alleged offence, not a requirement for a Form 2 information. It then asserts that the offence is punishable indictably also an amalgam of the words in Form 1 and Form 2. I consider it better to proceed on the basis that the information at least purports to be a Form 2 information. After all that is what the prosecution intended when it laid the information.
[16] Does, therefore, s 172(2) prohibit an amendment to this information so that it becomes a Form 1 information? I am satisfied that s 172(2) has no application to the facts of this case.
[17] The information here could not in law have properly been laid as a Form 2 information. The charge was solely a summary offence. Section 172 can only be concerned with informations that are validly in Form 2. The purpose of the prohibition in s 172(2) is likely to prevent the removal of the right given to an accused person to trial by jury (see New Zealand Bill of Rights Act 1990, s 24(e)). The prohibition in subs (2) prevents a Court amending a charge which entitles (or in some cases obliges) a defendant to be tried by jury to one of summary trial alone. Such a step would be objectionable as inappropriately narrowing an accused’s options as to the mode of trial.
[18] In this case no right of trial by jury was ever lost because no such entitlement ever existed. I consider, therefore, that s 172 must be read as applying only to informations which are in law valid Form 2 informations. That is, where trial on indictment is in fact an option. This view is reinforced by s 147 which governs that part of the Summary Proceedings Act which s 172 falls within Part 5.
[19] Section 147 provides as follows:
147 Proceedings under this Part
(1)This Part applies if the defendant is to be proceeded against by indictment.
(2)All proceedings to which this Part applies must be commenced by information in form 2 of Schedule 2 and substantiated on oath before a District Court Judge, Justice, Community Magistrate, or any Registrar (not being a [constable]).
(3) Subsection (2) is subject to sections 44 and 66.
(4)Without limiting any other provision of this Act or any other enactment, no information is invalid only because it—
(a) does not contain the date of birth of the defendant; or
(b) does not correctly describe the defendant's date of birth.
(5)No amendment is required to remedy an omission or error of the type described in subsection (4) before the trial.
[20] Here, the defendant was not going to be proceeded against by indictment because he could not be tried in that way (s 147(1)). Thus a Form 2 information could not be used.
[21] I am therefore satisfied that the s 172(2) prohibition against amendment applies only to an information which charges a crime which can be proceeded against an accused person by indictment (s 147(1)). Given that is not the case here the prohibition in s 172(2) cannot apply to this information.
[22] To address the plaintiff’s second point. He submits that the information here is a nullity and that s 204 does not therefore apply. A finding the information is a nullity means that there is no “valid” information which can be saved by s 204.
[23] The appellant relied on cases such as R v C[1] and Hedges v Police[2]. In R v C the accused was charged with sexual crimes in the mid 1980s. The charges were indictable but able to be tried in the District Court, where the maximum penalty would have been three years rather than the ten years maximum the appellant faced. The committal for trial was based on informations which charged an offence of which the accused could not be convicted. The accused had been put in front of the jury and the trial was about to begin. Neazor J dismissed the jury concluding a trial could not be held based on charges that the accused could not have been committed for trial on. The accused had lost a significant potential advantage of a plea in the District Court with a significantly reduced maximum penalty. The Judge therefore remanded the accused back to the District Court to be properly charged.
[1] R v C (1989) 5 CRNZ 153 (HC).
[2] Hedges v Police HC Whangarei CRI 2009-488-0049, 9 September 2010.
[24] That case is quite a different case than the current facts. In R v C the accused had lost a potentially advantageous opportunity by a defective charge and so s 204 could not apply. Here, there is no loss of potential advantage to the plaintiff in amending the charge.
[25] In Hedges the accused had been tried in the District Court on a charge it had no jurisdiction to hear and determine. The conviction was therefore set aside. These facts are quite different from the current facts. If the plaintiff had gone on to be tried and convicted by a jury then that conviction would have to be set aside as the trial would have been held without jurisdiction and therefore a nullity. But by itself the fact the trial was a nullity does not mean the information is a nullity. That raises different issues. In this case there has been no trial and the question remains whether the information is a nullity.
[26] Section 204 provides:
204 Proceedings not to be questioned for want of form
No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any [District Court] or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.
[27] In Hall v The Ministry of Transport Cooke P said: [3]
[3] Hall v The Ministry of Transport [1991] 2 NZLR 53 (CA) at [57]-[58].
Nullity or otherwise can be a question of degree. No doubt if a document or proceeding is so gravely defective that it should be treated as completely non-existent, the section will not apply. The Court is slow, however, to reach such a drastic conclusion, even where there are substantial deficiencies.
...
We repeat that such a conclusion is not reached at all readily; as was emphasised in Best v Watson that is not a mechanical or technical question.
[28] Here the inadequacy in the information is not in my view so gravely defective that the information should be treated as effectively non-existent.
[29] The information is a mixture of Form 1 and Form 2. It should have been solely a Form 1 offence. The “defects” or “want of form” relate to the word “indictably” which should have been “summarily”. The information itself is still an information. It contains the essence of an information tested against what is required of it, both by Forms 1 and 2. It confirms the constable who has sworn the information has just cause to suspect the defendant had committed a crime at the time and place identified. The particular crime is identified. These are the essential features of an information.
[30] I am satisfied, therefore, that the information here is a valid information and not a nullity. The defects go solely to the mode of trial. This is not a grave defect. The plaintiff was informed of the essential allegations against him. Given there is no challenge to the District Court Judge’s conclusion that no miscarriage of justice arises from this conclusion (nor could there be) the Judge was correct to refuse to quash or to hold invalid the information.
[31] In those circumstances the proper course was to amend the information to ensure that it complies in all respects with a Form 1 information pursuant to s 43(1).
[32] For the reasons given, therefore, the grounds of judicial review, alleging errors of law, are not made out. The plaintiff’s application is therefore refused.
[33] If the defendant seeks costs it should file an application within 14 days and in response the plaintiff within a further 14 days.
Ronald Young J
Solicitors:
J K W Blathwayt, Associate, WCM Legal, PO Box 49, Carterton 5743
email: john[email protected]
S E McKenzie, Crown Law, PO Box 2858, Wellington 6140 email: sara[email protected]
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