Johnson v Police
[2013] NZHC 3098
•22 November 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2013-485-37 [2013] NZHC 3098
BETWEEN SHAUN JOHNSON Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 5 November 2013
Appearances: J K Mahuta-Coyle for the Appellant
E M Light for the Respondent
Judgment: 22 November 2013
JUDGMENT OF MALLON J
Table of Contents
Introduction ....................................................................................................................................... [1] The law ............................................................................................................................................... [4] Trial counsel error .......................................................................................................................... [4] New evidence .................................................................................................................................. [5] District Court hearing....................................................................................................................... [7] The evidence ................................................................................................................................... [8] The Judge’s decision ..................................................................................................................... [14] Trial counsel error ........................................................................................................................... [16] Was there an error? ...................................................................................................................... [16] Real risk that error affected the outcome? ................................................................................... [24] New evidence ................................................................................................................................... [30] Result ................................................................................................................................................ [31]
JOHNSON v NEW ZEALAND POLICE [2013] NZHC 3098 [22 November 2013]
Introduction
[1] Mr Johnson appeals against his conviction1 on a charge of common assault.2
The charge arose from an altercation with Mr Jama on the landing outside the door of a flat on the third floor of a block of flats. In finding the charge proven the Judge relied on evidence from a witness, Mr Brock-Smith, who said he saw the altercation from his position on the ground floor of the flats. There were eight scene photographs taken by the police but only seven of them were produced at the hearing. The photograph not included was taken from the ground floor looking up to the third floor. It was the only one of the eight photographs which showed the view which could be had looking upwards from the ground floor. That view was a narrow and restricted one.
[2] The appeal is on the basis of trial counsel error. It is said that Mr Johnson’s trial counsel erred by not ensuring the eighth photograph was included in the evidence at trial. It is also said that he erred by not marshalling other evidence, and in particular by not obtaining further photographic evidence demonstrating the limitations of Mr Brock-Smith’s vantage point. It is said that this evidence, if before the District Court at first instance, reasonably could have led to a finding of not
guilty.3
[3] The respondent says that there was no trial counsel error. It says that trial counsel questioned Mr Brock-Smith about whether he could see from his position on the ground floor, and made a legitimate tactical decision to concentrate on inconsistencies in Mr Brock-Smith’s account. It is said that the Judge was entitled to make the assessments of the witnesses that he did and the admission of the photographic evidence now relied upon would not have made a material difference
to the outcome of the trial.
1 New Zealand Police v Johnson DC Hutt Valley CRI-2012-032-3652, 21 May 2013. Mr Johnson
was sentenced to 120 hours’ community work. There is no appeal against sentence.
2 Crimes Act 1961, s 196.
3 Mr Johnson made other criticisms of his trial counsel. However these were not pursued in the appeal submissions, presumably because the response of trial counsel which was in the material before me on the appeal made it clear that these criticisms were without substance.
The law
Trial counsel error
[4] When an appeal is based on an allegation of trial counsel error the ultimate question is whether justice has miscarried. This involves consideration of whether there was in fact an error or irregularity on the part of counsel and whether there was a real risk it affected the outcome. As it was said in R v Sungsuwan:4
In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate Court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
New evidence
[5] An appeal may be brought on the ground of fresh evidence on the basis that it gives rise to a miscarriage of justice.5 Not all new evidence may qualify for consideration however. As set out by the Court of Appeal in R v Bain, and affirmed by the Supreme Court in Fairburn v R:6
An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice.
[6] Similarly, the Privy Council in Lundy v R said that:7
4 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70]. See also the further discussion in R v Scurrah CA159/06, 12 September 2006 at [17]-[20]. This test has been applied in the High Court in Johanson v New Zealand Police [2012] NZHC 2084; Waihape v New Zealand Police HC Napier CRI-2010-441-39, 9 February 2011; Birch v New Zealand Police HC Napier CRI-
2010-441-13, 20 December 2010; O’Brien v New Zealand Police HC Wellington CRI-2010-485-
5, 8 June 2010.
5 See discussion in Witehira v R [2011] NZCA 255 at [28]-[40] on the distinction between appeals based on failure of trial counsel to call evidence and appeals on the grounds of new evidence.
6 R v Bain [2004] 1 NZLR 638 (CA) at [22]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].
7 Lundy v R [2013] UKPC 28 at [120].
The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.
District Court hearing
[7] At the defended hearing the prosecution called evidence from the complainant (Mr Jama), the witness (Mr Brock-Smith) and the arresting officer (Constable Murrell). The defence was self-defence. The basis for that defence was a statement Mr Johnson had made to the arresting officer. Mr Johnson elected not to give or call evidence.
The evidence
[8] There were three different accounts of the incident. The first account was that of Mr Jama. He returned to his flat on the afternoon of 15 December 2012. He had just been discharged from hospital as a result of injuries sustained the night before.8 He said that the door of his flat (which was on the third floor) was open. He saw Mr Johnson hiding behind the door. Mr Johnson then sprinted out of the door way, grabbed him and tried to pull him into the flat. He started screaming and trying to run away from the door but he fell down and hit his head on the ground. He said that Mr Johnston went on top of him and started punching him in the head
and kicked him in the thigh and lower back. Mr Jama said that he could not see Mr
Johnson’s hands attacking him because he was “blocking” the blows.
[9] Mr Jama said that, at this point, the neighbours came out of their flats and started yelling and saying “what’re you doing?” “leave him alone” to Mr Johnson. Mr Johnson then let Mr Jama go and walked back into Mr Jama’s flat. Mr Jama
started running downstairs. Mr Jama said that Mr Johnson and a third person, either
8 His evidence was that he was intoxicated on 14 December 2012 and had woken up with these injuries without any memory of how he had sustained them.
Pacific Islander or Māori, who he had never met, followed him down. He said that this third person was not with Mr Johnson when he was attacking him. Mr Jama continued running for a time but then phoned police from a phone box.
[10] The second account was that given by Mr Brock-Smith. He lived on the ground floor of the flats. He was at home on the evening of 15 December 2012 when he heard yelling and screaming. He went out of his flat and into the hallway to find out where it was coming from. He looked up through the stairwell to the top floor where he saw three men having a fight on the top floor. He described the men as a Somalian, a Māori and a white European male with dreadlocked hair. (I interpolate here to note that Mr Jama is Somalian and Mr Johnson could be described as a white European.)
[11] Mr Brock-Smith said that the Somalian’s back was up against the wall and he was trying to get away, crying out and yelling. The white European man hit the Somalian twice in the face with a Jagermeister bottle and the Māori man hit the Somalian a number of times in the chest area. The Somalian man managed to move around the railing, getting close to the stairs but he was still getting hit at this stage by the Māori man. The Somalian took off downstairs. When the Somalian ran past Mr Brock-Smith he noticed that the Somalian’s jaw was quite swollen and a lot of blood was coming out of it. He could not say whether the other two went back into the flat briefly, but said that they “came down pretty much after [the Somalian] took off down the stairs.”
[12] The third account was that given by Mr Johnson in his statement to the arresting officer. Mr Johnson told the officer that he had gone to the flat with a Mr Patu to see Mr Jama’s brother, Abdi, who was his mate. They took a bottle of Jagermeister with them. When they arrived Mr Jama was not there but they decided to stay for a few drinks with Abdi and another guy, Bukka. He heard knocking on the door and he answered it because no-one else did. It was Mr Jama. Mr Johnson had heard from people that Mr Jama had sex with his partner on one occasion. He asked Mr Jama about this. Mr Jama looked agitated, stepped back and then came back towards him and grabbed him on the shoulder and was trying to push him against the wall. There was a bit of pushing back and forth then “I hit him with my
right fist – punching him twice in the side of the head.” Mr Jama made a high pitch noise when Mr Johnson punched him. Mr Jama then fell down at the top of the stairs. He grabbed hold of the railing, stood himself up and ran down the stairs.
[13] Mr Johnson said that he turned to go back into the flat. As he did he noticed the door to the first flat as you go up the stairs was open and a Samoan or Māori guy was looking out through the door. Mr Johnson went back into the flat, grabbed the Jagermeister bottle and said to Mr Patu “let’s go”. Mr Patu and Mr Johnson then exited the block of flats.
The Judge’s decision
[14] The Judge noted that Mr Brock-Smith’s account corroborated the account of Mr Jama in some respects. He also noted that the accounts of Mr Jama and Mr Brock-Smith differed in that Mr Jama did not mention an assault by “the Māori guy” and did not mention being hit with a bottle by Mr Johnson. As to the involvement of the Māori guy the Judge noted that it was clear from Mr Jama’s account that there was in fact a Māori guy on the scene because another person followed Mr Johnson down the stairs. The Judge considered it to be “possible” on Mr Jama’s account that he was not particularly aware of another assailant because he was blocking blows by putting his hands over his head. The Judge said “I do not imagine that he was, on his account, in a state where he could look and have a good look around at who was
there.”9 As to the Jagermeister bottle, the Judge noted that it was clear from Mr
Johnson’s statement to the police that there was in fact a Jagermeister bottle at the flat.
[15] The Judge concluded:10
Now even on Mr Johnson’s statement to the police, all that Mr Jama did to him was grab him by the shoulder and his reaction was that he punched Mr Jama twice on the side of the head and the only justification for that was that he would not let go.
It is possible to argue that that is a disproportionate response to try and disengage oneself from someone who is holding you, but I consider that matters went much further than that. I consider that I can rely on
9 New Zealand Police v Johnson, above n 1, at [8].
10 At [10]-[13].
Mr Brocksmith’s evidence to say that there were a number of blows struck and that at the stage when Mr Brocksmith saw what was going on, Mr Jama was doing nothing but trying to protect himself and get away and I consider that the description given by Mr Brocksmith allows me to conclude that the response was highly disproportionate to any offence which Mr Jama might have given to Mr Johnson.
As to whether I should disbelieve Mr Brocksmith or Mr Jama because of the discrepancies to which I have referred about the number of protagonists and the Jagermeister bottle, I have concluded that although I cannot disregard those differences, I think that the presence of the third person is confirmed both by Mr Brocksmith and by Mr Jama and I accept that the role of that third person is unclear but not to the extent which would cause me to disbelieve the evidence of one or other or both of Mr Brocksmith and Mr Johnson. As for the Jagermeister bottle, I cannot explain that and it is possible that a Jagermeister bottle was visible at some stage. There is evidence of it being taken out of the flat and Mr Brocksmith may have seen that bottle at some stage and may have mistakenly thought that it was being used in the assault. I do not know whether it was used in the assault or not but what I do know is that had the police thought it was being used in the assault, well then Mr Johnson would have faced a more serious charge.
To sum up, I conclude that even on Mr Johnson’s evidence it is arguable that his response to any approach by Mr Johnson was disproportionate and might, on its own, qualify as an assault but I am satisfied, from the evidence both of Mr Jama and of Mr Brocksmith, that matters went much further than that, that Mr Johnson, either on his own or with the other man, administered a substantial beating to Mr Jama which was not provoked by him by any significant prior attack on them or either of them, I therefore find that the charge is made out.
Trial counsel error
Was there an error?
[16] Mr Johnson says that he received ineffective assistance from his trial counsel, Mr Bourke, because relevant evidence that could reasonably have been adduced on his behalf was not. That evidence was the eighth scene photograph and further evidence showing that Mr Brock-Smith must have had a restricted view of events from the ground floor.
[17] Mr Bourke says that prior to the hearing the prosecutor asked if the scene photographs (which had been provided in disclosure) could be produced by consent. He agreed to this. On the morning of the hearing he received the booklet and briefly looked through them. He did not notice that one of the photographs was omitted. He considered that the photographs in the booklet, and photograph one in particular
(which showed the confined landing area at the top of the stairs outside Mr Jama’s flat), were helpful to the defence. He accepts it was his responsibility to ensure that all photographs were included but does not think it would have changed the way he conducted the defence.
[18] Mr Bourke says that he discussed with Mr Johnson whether Mr Brock-Smith would have any motivation to invent or exaggerate his story. He says that Mr Johnson gave him no instructions to that effect so he felt confined to cross- examining Mr Brock-Smith on the basis he was mistaken. Mr Bourke began his cross-examination of Mr Brock-Smith by addressing his view of the assault. The cross-examination proceeded as follows:
Q. Just confirm you live on the ground floor –
A. Yes.
Q. – of the, this set of flats. Now the, where this incident, that’s up on
the third floor is it?
A. Yes.
Q. So there’s two flights of stairs before you can, well to get to the top,
sorry?
A. Yes.
Q. Now could I just get you to have a look at, have you got the photos.
Can I ask, not sure if it’s numbered, I’ll just show it to –
A. Is that the one? Q. Yes.
MR BOURKE
Your Honour I’m not sure if you have numbers on them I’ll show you –
THE COURT
If it’s this one, it’s number 1.
CROSS EXAMINATION CONTINUES: MR BOURKE
Q. It’s numbered number 1, thank you sergeant. Just having a look at
that photo Mr Brock-Smith.
A. Mhm.
Q. They’re quite narrow, some corridors there aren’t they?
A. Yes.
Q. They are, and is this photograph that we’ve got of number 1, that is
the door on the top level? A. Yeah.
Q. And that’s the one outside of which this incident took place.
A. Yeah.
Q. And then we can see the stairway leading down stairs to I guess level
2?
A. Yeah.
Q. And then it’s not evident from that photo, but I’m guessing there’s
another stairway going down to level 1?
A. Yes.
THE COURT:
Q. And you’re on level 1?
A. Yes.
CROSS-EXAMINATION CONTINUES: MR BOURKE
Q. Looking at the photo you accept that there’s some quite prominent black bars along the, obviously the edge of the, wouldn’t you accept Mr Brock-Smith that looking up from not one but two levels down through all these black bars, it must have obstructed your view somewhat?
A. No.
Q. You don’t accept that?
A. No.
Q. Just looking at the angle of the stairways, would you not accept that there would have been some impediment in your view being three floors down?
A. Not really, no.
[19] With Mr Brock-Smith adamant that he had a clear view Mr Bourke did not consider it was beneficial to Mr Johnson’s case to keep asking Mr Brock-Smith about his view and have him repeatedly tell him what a good view he had. Because Mr Johnson was relying on self-defence Mr Bourke decided it was more constructive to focus on the inconsistencies between Mr Brock-Smith’s evidence and that of other
witnesses, and creating doubt in Mr Brock-Smith’s evidence. He proceeded to ask Mr Brock-Smith about the inconsistencies in his account as compared with that of Mr Jama, namely that:
(a) Mr Brock-Smith said two were involved in the assault whereas Mr
Jama said it was one;
(b)Mr Brock-Smith said Mr Johnson hit Mr Jama a number of times in the head with a bottle, whereas Mr Jama made no such claim;
(c) Mr Brock-Smith said Mr Johnson chased him down the stairs after the fight, whereas Mr Jama said Mr Johnson went back inside.
[20] In re-examination the prosecutor returned to the issue of Mr Brock-Smith’s
view as follows:
Q. The issue of the visibility through these bars has come up. If you look at photograph number 1?
A. Mhm.
Q. Are you able to whether there’s any difference in your ability to see
– on the left in the photograph, there’s a door?
A. Yes.
Q. And there are some bars in front of that, can you see those through those, can you see those bars for a start now in the photograph?
A. Yes.
Q. Are those bars roughly the same distance apart as the bars that are on the piece running away from you?
A. Yes they are.
Q. Is there any difference in your ability to see through the gaps in those bars that are by the door and the bars that are running along the
– length ways?
A. No there’s not.
Q. In the photograph?
A. In the photograph, mmm, on the – down here it looks like they’re quite close together but they’re actually spaced out like that.
Q. And are those ones, you can say at different angles you can see through the bars at different –
A. Different angles. Q. – ability?
A. Yes.
[21] Mr Bourke considers that if the eighth photograph had been included in the booklet it would not have changed the manner in which he conducted the case. That is because he considered that photograph one demonstrated that Mr Brock-Smith’s view would have been obstructed. While I accept that Mr Bourke’s tactics may not have changed with the eighth photograph, that does not exclude there being an error. Photograph one was of the landing area outside the upstairs flat, the railing on the upstairs level and a portion of the first flight of stairs going down. I agree that it supported the point that Mr Brock-Smith’s view was likely to have been a restricted one. However to demonstrate the point more clearly, the eighth photograph was relevant. It was the only photograph that directly showed the restricted view from the downstairs looking up. In my view it was an error, albeit an inadvertent one. The error was not one of tactics but of failing to ensure available relevant evidence (the eighth photograph) was before the Court.
[22] As to marshalling other evidence, Mr Johnson has obtained new evidence from David Horsburgh, a security officer and former police officer. He has taken photographs of the scene and carried out a demonstration to illustrate the best available view of the upstairs landing from the ground floor. His evidence concludes that:
(a) the door to Mr Jama’s flat is not visible from the ground floor;
(b) a person standing immediately outside the door to Mr Jama’s flat door
is not visible from the ground floor;
(c) a person standing 500 metres from the door to Mr Jama’s flat is not
visible from the ground floor;
(d)the widest field of view of the area outside Mr Jama’s flat when viewed from the ground floor is 36 centimetres, less than the width of the shoulders of an average adult;
(e) none of the doors to apartments on the third floor are visible from the ground floor.
[23] It was not an error, in my view, that this evidence was not obtained prior to the hearing. While helpful in supporting the defence contention that Mr Brock- Smith’s evidence could not be relied upon, there was already available material on which that contention could be put. It is not the case that counsel must marshal the best evidence that possibly might be available. The standard is one of reasonableness.11 This was a simple charge of assault. The defence put forward on Mr Johnson’s behalf employed appropriate tactics and was competently conducted. The only error was in inadvertently failing to notice that the eighth photograph was
not included. The new evidence of Mr Horsburgh is, however, relevant to the question of whether there is a risk that a miscarriage of justice has occurred, which I refer to below.
Real risk that error affected the outcome?
[24] In finding the charge proven the Judge relied on Mr Brock-Smith’s evidence that “there were a number of blows struck” when “Mr Jama was doing nothing but trying to protect himself and get away”.12 He also concluded, on the basis of “the description given by Mr Brock-Smith ... that that response was disproportionate to any offence which Mr Jama might have given to Mr Johnson”.13 The Judge specifically did not reach a firm view on whether, on Mr Johnson’s own account, his response was disproportionate. He thought this was “arguable” but was satisfied on the evidence of “both Mr Jama and Mr Brock-Smith” that it was a disproportionate
response.14
11 See R v Sungsuwan, above n 4, at [49]-[54], [66] and [70]; R v Williams CA63/05, 9 December
2005 at [107], [110] and [111] per Gendall J; R v Genovese CA151/02, 8 September 2005 at
[46].
12 New Zealand Police v Johnson, above n 1, at [11].
13 At [11].
14 At [13].
[25] It is therefore apparent that Mr Brock-Smith’s evidence was an important component in the Judge’s finding that the prosecution excluded any reasonable possibility that Mr Johnson acted in self-defence. The reliability of Mr Brock- Smith’s evidence was dependent on whether he could in fact see what he said he did. The eighth photograph cast greater doubt on Mr Brock-Smith’s assertions that he could see what he described of the altercation, than the doubt that may have arisen from the other photographs before the Judge. That Mr Brock-Smith had a restricted view helps to explain the discrepancies between Mr Jama’s account and that of Mr Brock-Smith. That is to say, Mr Brock-Smith’s evidence may have been an inaccurate account influenced by hearing the noise that brought him to the outside of his flat, and seeing Mr Jama running down the stairs with injuries followed soon thereafter by Mr Johnson (holding his Jagermeister bottle) and Mr Patu.
[26] If Mr Brock-Smith could at best see only through the narrow width between the flights of stairs (as shown in the eighth photograph) most of his description of the assault had to be put to one side. What was left of Mr Brock-Smith’s account was the noise he heard which alerted him to the fight, the possibility that he saw something that indicated Mr Johnson was the aggressor (perhaps Mr Johnson inflicting the punches which he himself admits or perhaps Mr Jama on the ground), that Mr Jama then fled down the stairs, and that shortly thereafter Mr Johnson and Mr Patu also went down the stairs. Mr Brock-Smith’s evidence of Mr Jama’s injuries did not particularly assist. Mr Jama had gone to hospital earlier that day because of injuries sustained the evening before. Mr Brock-Smith did not see Mr Jama before the altercation with Mr Johnson so could not see the extent of Mr Jama’s injuries before that altercation.
[27] Does that mean there was a reasonable possibility that the Judge would have found the charge not proven?15 I consider there is a reasonable possibility. In the
15 See the comments of Tipping J concerning what constitutes a miscarriage of justice in R v Sungsuwan, above n 4, at [110]. I note for completeness that the majority in Sungsuwan did not directly address the question of what constitutes a miscarriage of justice. The approach to Tipping J to miscarriage of justice in the context of trial counsel error has been followed in the High Court in Gabriel v New Zealand Police [2013] NZHC 1721 at [52]; O’Brien v New Zealand Police HC Whangarei CRI-2006-+011-343, 5 May 2008 at [18]; Raea v Commissioner of Inland Revenue [2012] NZHC 2064 at [21].
absence of reliable corroboration from Mr Brock-Smith the Judge was left with Mr
Jama’s account of the assault as against Mr Johnson’s account.
[28] In considering these differing accounts, there was a reason to doubt Mr Jama’s credibility. As at 20 March 2013 he had two convictions for common assault, one conviction for assaulting an officer and one conviction for resisting police. He received imprisonment sentences for this offending. The injuries that he sustained sometime in the evening/early morning of 14/15 December 2012 are also consistent with involvement in an altercation of some kind (though whether as the aggressor is
unknown).16 This history, which was before the Judge, suggests a propensity to
engage in physical confrontations. That supports Mr Johnson’s account that Mr
Jama arrived at the flat agitated and was the aggressor.
[29] The Judge heard from Mr Jama and was able to make an assessment of his credibility. It seems that he was not prepared to accept his word over that of Mr Johnson’s without the corroboration from Mr Brock-Smith. That is because the Judge considered only whether the charge was proven on the basis of Mr Jama’s statement as supported by Mr Brock-Smith, or whether the charge was proven on the basis of Mr Johnson’s own statement (and did not reach a concluded view on that). As to Mr Johnson’s statement, two punches to the head is arguably disproportionate but I am not sure that the Judge would necessarily have reached that conclusion in light of all the evidence he heard. The trial Judge is better placed to make that assessment than I am on this appeal. I therefore consider that there is a risk of miscarriage of justice and the appeal must be allowed.
New evidence
[30] For completeness I note that the proposed evidence from Mr Horsburgh supports and elaborates on what the omitted eighth photograph shows. This proposed evidence is not fresh, in that it could have been obtained for the trial, but it is credible. Had the eighth photograph not been taken at the scene, and had this evidence been before the Judge, it may have affected the Judge’s conclusion (as is
my view in relation to the omission of the eighth photograph). It is, however, not
16 Mr Jama denied he was involved in a fight the night before and said he did not remember a fight.
necessary to determine whether the appeal should be allowed on this basis. It is allowed because of the omitted eighth photograph. The new evidence, and any other available and relevant evidence, can be adduced at the rehearing.
Result
[31] The appeal is allowed. The conviction is quashed. The proceeding is referred back to the District Court for rehearing.
Mallon J
4
0