Hooker v Police

[2012] NZHC 1793

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-15 [2012] NZHC 1793

BETWEEN  GARRY JOHN HOOKER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         20 July 2012

Counsel:         No appearance by, or on behalf, of Appellant

N Tahana for Respondent

Judgment:      20 July 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Rotorua
Copy to:

Appellant in person

HOOKER V NEW ZEALAND POLICE HC ROT CRI 2012-463-15 [20 July 2012]

The appeal

[1]      Mr Hooker appeals against conviction and sentence.  The appeal arises out of a finding of guilty in respect of a charge that he failed to keep left of a no passing line when overtaking.   He was ordered to pay $932.89, a fine plus costs, and was ordered to be disqualified from holding or obtaining a driver licence for a period of three months.

Facts

[2]      Mr Hooker was travelling on the Napier-Taupo Highway on State Highway 5. While driving along that road he overtook two vehicles.  In passing the second, he crossed over double yellow lines.   The overtaking manoeuvre occurred close to a blind right-hand bend, where a motor bike was travelling in the opposite direction. An off-duty detective happened to be travelling in the second vehicle that Mr Hooker overtook.  He reported the incident.  Mr Hooker was later stopped.

[3]      On 24 September 2010, an infringement notice was issued for failing to keep to the left. A reminder notice was sent on 30 October 2010.

[4]      On 22 December 2010, Mr Hooker appeared in the District Court at Taupo and entered a plea of not guilty.  A defended hearing was set down for 15 February

2011.

[5]      On 15 February 2011, Mr Hooker did not appear for the defended hearing prosecution witnesses did attend Court.   It became apparent that Mr Hooker had sought an adjournment on the basis that he was appearing on another relatively minor charge, on 14 March 2011, and wanted the two matters to be dealt with on the same day.

[6]      Generously, the presiding Justices of the Peace adjourned the hearing to that date.  The defended hearing scheduled for 14 March 2011 was adjourned due to one of the prosecution witnesses being unavailable.  The other charge was disposed of.

The detective had been deployed to Christchurch, to assist with earthquake recovery, so there was a good reason for his non-availability.  A new date of 2 May 2011 was set.

[7]      On 2 May 2011, Mr Hooker failed to appear.  A defended hearing took place in the District Court in his absence.  He was found guilty of the offence, by way of formal proof, and sentenced.

[8]      Mr Hooker appealed on the grounds that he had not received notice of the hearing.   His appeal came before Asher J on 1 December 2011.   The appeal was allowed and a rehearing was directed.[1]

[1] Hooker v NZ Police HC Rotorua CRI 2011-363-000035, 1 December 2011 (Asher J).

[9]      On 15  February 2012,  after  a further hearing  had  been  allocated  for  21

February 2011, Mr Hooker wrote to the District Court requesting an adjournment because of the unavailability of two witnesses.

[10]     On 20 February 2012, he again telephoned the Court and was instructed to appear on 21 February 2012.  Mr Hooker did not attend that hearing.  He was again found guilty, by formal proof and sentenced, by Mr Israel JP and Mr Gaylord JP.

Determination of appeal

[11]     Mr Hooker was given notice of today’s hearing.  He has not appeared.  I have

proceeded in his absence, taking account of written information he has provided.

[12]     Mr Hooker’s appeal is based on his inability to attend the hearing on 21

February 2012.  As I apprehend what he has written to the Court, he suggests that he received notice late and telephoned the Court to advise he was unable to attend.

[13]     His submissions do not explain why he did not attend.  I can only take it that he assumed he was not required to attend even though he appears to have been

instructed to do so.   In the absence of a formal adjournment of the hearing in

advance, Mr Hooker was obliged to attend, if he wished to pursue his defence.  No adjournment was granted.

[14]     Contrary to what happened on 1 December 2011, on this occasion it is clear that Mr Hooker failed to appear without excuse.   The Justices were entitled to proceed on a formal proof basis.  The evidence adduced was sufficient to prove the charge.  The sentence imposed was not manifestly excessive, having regard to the nature of the driving disclosed in the formal proof evidence.

Result

[15]     For those reasons, the appeal is dismissed.

P R Heath J