Hooker v Police HC Rotorua CRI-2011-463-000035

[2011] NZHC 1945

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-463-000035

GARRY JOHN HOOKER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 December 2011

Counsel:         Appellant in person

S Simmers for Respondent

Judgment:      1 December 2011

JUDGMENT OF ASHER J

Solicitors/Counsel:

Crown Solicitor, PO Box 740, Rotorua 3040. Email:  [email protected]

Copy to:

G J Hooker, 86 Douglas McLean Avenue, Marewa, Napier 4110.

HOOKER V NZ POLICE HC ROT CRI-2011-463-000035 1 December 2011

Introduction

[1]      Garry John Hooker appeals his conviction and sentence for failing to keep to the left of no-passing lines when passing a vehicle.   He represents himself.   His appeal is not related to the merits of his defence.  Rather he complains that he did not know of the hearing.

The offending

[2]      The charge arose from an off-duty police officer noticing Mr Hooker passing him while he was driving on the left lane of a passing lane on State Highway 5.  The officer states that the vehicle driven by Mr Hooker went at speed along the right lane of the passing lane and overtook a vehicle towing a trailer in front.  The manoeuvre continued after the passing lane ended.  The officer alleged that at this stage of the manoeuvre Mr Hooker crossed the double yellow lines on the road where it reverted to two lanes, and that in doing so he came close to a motorbike approaching in the opposite direction.

The process that followed

[3]      On receiving notification of the charge Mr Hooker advised that he wished to defend it.  He was then advised of a fixture.  He protested about the fixture date in a letter to the Court of 2 February 2011 but it proceeded nonetheless.  Ultimately he made his way from his residence in Napier to the District Court at Taupo for the hearing with witnesses. The cost to him was considerable.

[4]      On arrival at the Court he waited around through the morning for his case to be called.  He was then told over the lunch adjournment that the fixture could not proceed as the officer in question had been called down to Christchurch urgently because of the earthquake. The Police had known of this for 12 days.

[5]      He went into Court and had an exchange with the Justice of the Peace.  He was understandably upset that he and his witnesses had not been told earlier of the Police problem so they could have avoided a wasted trip.   He says that a date in

April or May was discussed in Court but that no date was to his knowledge fixed during that discussion.

[6]      However, a date had been fixed by the Justices of the Peace for 2 May 2011. Mr Hooker did not appear when the matter was heard.  The Police called the officer who  had  witnessed  the  incident,  and  another  officer  who  had  later  spoken  to Mr Hooker.  The Justices of the Peace convicted him.  He was fined $800 plus costs of $132.89 and disqualified from driving for three months effective from 16 May

2011.

Discussion

[7]      Before me Mr Hooker gave the explanation I have previously referred to as to his  lack  of  awareness  of  the  fixture  date.    The  Justices  of  the  Peace  in  their conviction and sentence decision of 2 May 2011 have recorded that Mr Hooker was informed of the date of the court appearance by them.   This is to an extent corroborated by the handwritten entry on the infringement notice.  I have no doubt that in the course of the exchange the date for the adjourned hearing was in fact stated.   But I also accept that Mr Hooker was upset and in a strange environment may not have understood that a firm date had been fixed.  He should have been told by the Police before 2 February 2011 that the Police wished to adjourn the hearing.

[8]      There is  nothing on  the Court  file to  indicate  he was  given  any formal notification of the 2 May 2011 hearing date fixed on 2 February 2011.  Mr Simmers for the Crown has helpfully made inquiries of the Taupo District Court, but he has not been able to establish that any notice was in fact sent.   It is obviously good practice for a notice to be sent to an unrepresented party advising formally of an obligation to appear.

[9]      Mr Hooker spoke frankly and openly in Court, and without objection from the Crown.  He observed that he had expected that he would get a formal notification from the Court and he did not do so.  He says he did not know of the hearing.

[10]     Mr Hooker has now appeared in this Court for a second time.   I think it unlikely that he would not have attended on 2 May 2011 if he had known of the fixture.  In the circumstances I conclude that he has been convicted in his absence, and that if he had been told of the fixture he would have attended and defended. Mr Hooker has made it clear that he will appear at such a hearing and contest the charges.

Conclusion

[11]     Thus, because of Mr Hooker’s abortive initial appearance, the fact that there was no written notification to Mr Hooker of the hearing date, and the fact that as a consequence he did not attend the hearing he would have otherwise attended, I consider that there is a risk that there was an injustice.   I am persuaded that the appeal should be allowed and a rehearing ordered.

Result

[12]     The appeal is allowed. A rehearing is directed.

……………………………..

Asher J