J v Police HC Whangarei CRI 2005-488-0056

[2006] NZHC 647

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2005-488-0056

BETWEEN  J

Appellant

ANDP0LICE Respondent

Hearing:         8 June 2006

Appearances: N S Leader for appellant

M Smith for respondent

Judgment:      8 June 2006

(ORAL) JUDGMENT OF POTTER J

Solicitors:           Thomson & Wilson, P.O. Box 1042, Whangarei

Crown Solicitor, P.O. Box 146, Whangarei

J V P0LICE HC WHA CRI 2005-488-0056  8 June 2006

[1]      The appellant J   has appealed against a decision of the District  Court  at  Kaikohe  on  19  August  2005  given  by  Justices  of  the  Peace M Honiss and R Langwell.  They upheld an infringement offence that Mr J   passed another vehicle moving in the same direction without a clear view of the road for at least 100 metres.

[2]      The oral judgment of the Justices of the Peace stated:

Mr J   … You are not able to prove conclusively that you completed the manoeuvre where you said you did.

[3]      Counsel have conferred.   The Crown accepts that the Justices of the Peace misapplied the burden of proof, which of course rested with the Crown and not the appellant.  Counsel have jointly proposed that the Court should direct a rehearing of the matter.

[4]      There was considerable evidence placed before the Justices of the Peace, but their judgment makes no findings in relation to that evidence.   I consider that the appropriate course in this case is to remit the matter for rehearing in the District Court and I so direct pursuant to s 131(1) of the Summary Proceedings Act 1957.

[5]      I further direct that the rehearing should not be before the Justices of the

Peace who presided over the hearing on 19 August 2005.

[6]      The matter will be listed for callover in the Kaikohe District Court at 10 a.m. on 22 June 2006 when a fresh hearing date can be allocated.