Hill v Ministry of Fisheries
[2012] NZHC 511
•22 March 2012
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2011-406-000024 [2012] NZHC 511
CRAIG RAOUL HILL
Appellant
v
MINISTRY OF FISHERIES
Respondent
Hearing: 21 March 2012 (Heard at Nelson)
Counsel: A J Heward for appellant
S K O'Donoghue for respondent
Judgment: 22 March 2012
RESERVED JUDGMENT OF DOBSON J
[1] Mr Hill was convicted, in his absence, in the Kaikoura District Court on
5 April 2011 of a range of offences and infringements under s 229(1)(b)(i) and s 229(1)(c) of the Fisheries Act 1996 (the Act), together with contraventions of regs 15A and 25(1)(b) of the Fisheries (Amateur Fishing) Regulations 1986. More than seven and a half months later, on 22 November 2011, a notice of appeal, together with an application to extend time for filing such appeal, were lodged on
behalf of Mr Hill.
HILL v MINISTRY OF FISHERIES HC BLE CRI-2011-406-000024 [22 March 2012]
[2] Section 123 of the Summary Proceedings Act 1957 gives the Court a broad discretion to extend time for pursuit of such appeals. The following guidelines have been treated as helpful:[1]
[1] Summarised from Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84,
5 September 1984 at 2.
(a) the onus is on the applicant to show that there existed special circumstances why the decisions and sentences should not stand;
(b)the discretion was given essentially for the purpose of avoiding miscarriages of justice;
(c) all the circumstances of the particular case should be considered in deciding whether sufficient grounds had been shown; but
(d)one of the matters which must be established was that there was a real likelihood that an appeal would succeed if leave were granted. Some authorities go so far as to say that the likelihood must be such that the applicant can establish the probability of success.
[3] The Ministry of Fisheries (the Ministry) opposes the grant of leave to appeal out of time, and it was submitted on its behalf that the procedural history does not reflect any material prejudice to Mr Hill, or the risk of a miscarriage of justice.
[4] The offending was alleged to have occurred on 16 October 2009 and informations were laid in the Kaikoura District Court on 31 March 2010. A first call of the informations occurred on 4 June 2010. On the previous afternoon, Mr Hill requested an adjournment to enable him to seek legal aid, and that was granted. The informations were remanded to 16 July 2010. Solicitors then acting for Mr Hill applied for an adjournment to enable Mr Hill to seek legal aid. Again, the application was made only on the afternoon before the matter was to be called.
[5] There was a further remand to 10 September 2010 on which date there was no appearance by Mr Hill. The Court noted that there were to be no further
adjournments and the matters were remanded to 22 October 2010 for formal proof.
[6] Mr Hill did appear when the matters were called on 22 October 2010, but was not represented. He entered not guilty pleas and the matter was further remanded to a nominal date to set the date for a defended hearing. The Ministry submits that the Judge on that occasion advised Mr Hill that he must be ready to proceed and instruct counsel before the hearing, or the matter would be dealt with in his absence. A nominal fixture date was set for 21 January 2011 but there was insufficient Court time to hear the matters on that date and a further remand was ordered to 4 April
2011 for the defended fixture.
[7] It appears that Mr Heward was instructed, either on a legally aided basis or otherwise, some time around March 2011. Mr Heward wrote to the Ministry on
30 March 2011, indicating that he would be seeking an adjournment of the defended fixture on 4 April 2011. The Ministry responded, advising that it would oppose any adjournment and that such an application would have to be made to the District Court Judge when the matter was called.
[8] There was no appearance by or for Mr Hill on 4 April 2011. The Ministry submissions state that Mr Hill rang the Rangiora Court on 4 April 2011 and was advised by the Registrar that he had to attend at the Kaikoura Court at 9am the following day, 5 April 2011, to deal with the matters. Mr Hill apparently indicated that he would be seeking a further adjournment as he had not yet obtained legal aid.
[9] On 5 April 2011 there was no appearance by or for Mr Hill at the Kaikoura Court, and Judge Saunders proceeded to deal with the matter by way of formal proof.
[10] After the hearing had commenced on 5 April 2011, at 9.21 that morning, Mr Heward faxed a memorandum to the Registrar of the Kaikoura Court requesting an adjournment. Mr Heward was advised by the Registrar that the hearing had commenced. The Registrar did not place the memorandum before the Judge.
[11] In early March 2011, the Ministry had sent to what it understood to be Mr Hill’s address in Kaikoura a hearsay notice in relation to evidence that it proposed to seek to adduce from a former Fisheries officer who had been present on
the day of the alleged offending but who now lived in Western Australia. By then, Mr Hill was residing in Whangarei and he apparently only received the communication from the Ministry towards the end of March because of delays in his mail being forwarded to him in Whangarei. Mr Heward intended to raise the lateness of receipt of the application to rely on hearsay evidence, together with the unresolved application for legal aid, as grounds for a further adjournment.
[12] Section 61 of the Summary Proceedings Act sets out the Court’s powers where a defendant does not appear for a hearing. In relation to offences where the defendant is not entitled to elect trial by jury and is not liable on conviction to a sentence of imprisonment, the Judge has a discretion to either proceed with the hearing, or adjourn it to such time and on such conditions as the Court thinks fit.
[13] Section 75 of the Summary Proceedings Act provides that the judicial officer who presided over the Court when it reached a determination such as the present may grant a re-hearing. It is a power that may be appropriate where matters have been determined in the absence of the defendant. Mr Heward, in his submissions in support of the appeal, sought a re-hearing and referred to that section. On the terms of s 212(6) of the Summary Proceedings Act, which grants this Court the same jurisdiction in making orders as that of the Court appealed from, it is open for this
Court to exercise the power to remit the case for re-hearing.[2] That power is not
available to grant a re-hearing of an appeal which has already been decided by this Court, due to s 121(7) of the Summary Proceedings Act.[3] Although this Court has jurisdiction to remit the matter for re-hearing to allow Mr Hill to put his defence, I am not persuaded that it would be appropriate to do so in the present circumstances.
[2] Jones v Police HC Hamilton A83/97, 16 October 1997 at 7.
[3] Spencer v Police HC Christchurch, AP224/94, 19 October 1994.
[14] Mr Hill wants an opportunity to challenge the version of events described by the Fisheries officer in his evidence. He instructed Mr Heward that he would give evidence himself and call two other witnesses to contest the complaint that he obstructed the Fisheries officer. Mr Hill’s instructions are apparently that it was not him who was agitated, but rather the Fisheries officer. It is apparently accepted that
Mr Hill moved his vehicle with the boat attached to a trailer behind it, onto private
property. He thereafter used the fact that he and the boat were on private property as a ground for frustrating the Fisheries officer’s further inquiries into Mr Hill’s fishing activities that had commenced when the boat was initially on the boat ramp, and then parked a little distance away from the ramp on public property.
[15] Mr Hill would apparently deny that he was directed not to move the vehicle from the public property, where it had initially been moved to from the ramp. As to infringements in respect of Mr Hill using crayfish pots and floats that were non- complying by virtue of the absence of his name and initials, Mr Heward alluded to mitigating circumstances about how that had occurred, but not any basis for disputing the elements involved in those infringements.
[16] Mr Hill had been given more than ample opportunity to prepare a defence to the charges. More than 12 months had elapsed between the laying of the charges and the fixture date for their determination. Mr Heward indicated that the initial application for legal aid had been declined because of the view taken about an apparent interest of Mr Hill’s in a trust, and that re-consideration of the relevance of such interest took some time. That cannot justify a delay of 12 months. When pressed, Mr Heward acknowledged that the position with legal aid could have been resolved materially more quickly than it was.
[17] The delay in Mr Hill and his advisers becoming aware of the Ministry’s intention to seek to rely on a hearsay statement is regrettable, but by no means decisive in balancing the interests of the Ministry, as proxy for the community, in achieving finality, and those of the accused person to achieve a fair trial. Competent counsel ought to have been able to respond to the hearsay notice in oral argument, and evaluate the prospects of maintaining the defence Mr Hill wished to run, with or without the hearsay statement that the Ministry wanted to rely upon. In the context of formal proof, the Judge was satisfied that the charges were amply proven without any resort to the evidence of the second officer that would have been introduced by the hearsay statement.
[18] I am not persuaded that there was a miscarriage of justice in the District Court Judge proceeding to determine the charges in Mr Hill’s absence. Nor am I persuaded that Mr Hill would have a real likelihood of success on appeal.
[19] Each case where the Court has jurisdiction to proceed in the absence of the accused, and does so, has to reflect a balancing of interests reflecting the individual circumstances involved. However, some additional weight to the Ministry’s interest in achieving finality can be recognised where, as here, the consequences of a conviction include a mandatory ban on fishing activity by Mr Hill. Where those consequences are in prospect, there is a marginally more important interest in achieving finality so that an alleged offender, who by the terms of the statute ought not to enjoy the privilege of any fishing activity once convicted, should not be left free of the prospect of such a ban for an unduly lengthy period.
[20] The essence of the case Mr Hill would apparently run at any re-hearing would involve competing versions of events from those involved in, and directly observing, them. It is inappropriate to speculate on the prospects for Mr Hill to raise a reasonable doubt on the material aspects of the evidence from the Fisheries officer. However, given the undisputed aspects and the circumstances perceived by the Fisheries officer as requiring the assistance of a Police officer, it is difficult to acknowledge any real likelihood of a different outcome to that reached at the formal proof hearing.
[21] Mr Heward raised one discrete concern as to the point in the hearing at which the Ministry provided the Judge with a copy of Mr Hill’s previous criminal record. At a point in Judge Saunders’ oral judgment before he records his finding that the charges had been established, he stated:[4]
Mr Fletcher has assisted the Court with submissions and in particular multiple charges have been noted to have been established on formal proof evidence has provided the Court with Mr Hill’s prior history list of convictions which really indicate to the Court this is a man who simply has contempt for the Fisheries Law of New Zealand and indeed Fisheries Officers who are charged with trying to protect our species.
[4] Ministry of Fisheries v Hill DC Kaikoura CRI-2010-028-000060, 5 April 2011 at [10].
[22] As that acknowledgement was made before the Judge had recorded his finding that the charges were established, an inference arguably arises that his determination on liability was improperly influenced by knowledge of previous offending against the fisheries legislation.
[23] I am not satisfied that that raises a concern about the adequacy of the procedure at the formal proof hearing which can add materially to the prospects of a successful appeal. Some allowance has to be made in analysing the sequence of reasoning in such an oral judgment, for the pressure on the Judge to complete the matter. This is a well-experienced District Court Judge, and his ability to exclude any knowledge he might have from any source as to previous convictions when determining a current charge can appropriately be assumed. That must be so in the absence of a clear basis for inferring reliance on Mr Hill’s previous record. In the summary jurisdiction, situations are likely to arise where, for example, the Judge hearing a matter may also have presided in relation to previous matters involving the same defendant, or where pre-trial issues such as applications for bail expose the Judge to an accused person’s previous criminal record.
[24] It is not a complete answer on this point, as Ms O’Donoghue submitted, that no prejudice would be suffered by Mr Hill when the evidence offered on formal proof was in any event clearly sufficient on its own when determining that the present charges were made out. That is, however, an additional matter that can be taken into account in resisting the inference that might arguably arise from the sequence in which the various considerations were identified in his oral judgment.
[25] The appeal was also pursued as one against sentence, but Mr Heward did not advance any criticisms of the nature and level of penalties imposed. The submissions for the Ministry reviewed the relative severity of the fines totalling
$7,750 that were imposed, relative to the statutory maximum of $250,000. In light of Mr Hill’s previous history of some 17 fisheries offences, I am satisfied that there could not be a tenable basis for making out the penalties as clearly excessive.
[26] Accordingly, leave to appeal out of time is declined.
Dobson J
Solicitors:
City Legal, Nelson for appellant
Crown Solicitor, Nelson for respondent
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