Jordan v Police HC Whangarei CRI 2011-488-000001

[2011] NZHC 925

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-488-000001

KEVIN ROSS JORDAN

v

NEW ZEALAND POLICE

Hearing:         25 July 2011

Counsel:         G R Anson for the Appellant

D B Stevens for the Respondent

Judgment:      2 August 2011 at 4:00 PM

RESERVED JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie

On 2 August 2011 at 4.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution: G R Anson

D B Stevens

K R JORDAN V NEW ZEALAND POLICE HC WHA CRI 2011-488-000001 2 August 2011

[1]       On 18 November 2010, Mr Jordan was convicted in the District Court at Kaikohe on a charge that he drove his motor vehicle on 1 June 2010 while the proportion of alcohol in his breath exceeded 400 micrograms per litre, this being a third or subsequent offence.  He was fined $800, and ordered to pay Court costs of

$132.89.  He was also disqualified from holding or obtaining a driver’s licence for a

period of one year and one day.

[2]      Mr Jordan appeals that conviction.   He asserts that his prosecution was commenced pursuant to s 19B of the Summary Proceedings Act 1957, but that the information ultimately laid against him and determined by the Court was filed in breach of that section, and that it ought to have been declared a nullity.

Background

[3]      On 1 June 2010, Mr Jordan was apprehended driving a motor vehicle on State Highway 10 near Kerikeri.  He was breath tested by the police officer and the breath test device recorded a “fail general” result.  Mr Jordan accompanied the police officer back to the police station.   He underwent an evidential breath test which showed that he had 643 micrograms of alcohol per litre of breath.  He was told the result and given the option of a blood alcohol test.   Mr Jordan did not want to undergo a blood alcohol test.  After the expiry of the appropriate time, Mr Jordan was issued with an “on the spot” summons by the police officer pursuant to s 19B of the Summary Proceedings Act requiring him to attend in Court on 18 June 2010. An information number CRN10027001351 was then laid on 10 June 2010, for hearing on 18 June 2010.

[4]      Mr  Jordan  answered  his  summons  and  he  appeared  in  the  Kaikohe District Court on 18 June 2010.  He advised that the case was to be defended, and it was allocated a fixture on 18 November 2010.

[5]      On 18 November 2010, but prior to the commencement of the hearing, the Police laid and filed another identical information, CRN10027002789.   This information bore the hearing date 18 November 2010.

[6]      At the hearing, the Court declared the 10 June 2010 information a nullity and dismissed it, on the uncontested basis that initially it had been proposed that the matter would be dealt with as a fast track prosecution under s 19B of the Act, but the first information had been laid outside the time limit of seven days prescribed in s

19B(3).  The Court then proceeded to determine the matter on the basis of the 18

November 2010 information.   Counsel for Mr Jordan preserved an argument regarding the validity of the 18 November 2010 information, while conceding that the District Court would find persuasive, if not binding, dicta in various High Court authorities including Kopua v Police,1 and McNeill v Ministry of Transport.2

[7]      In his notice of appeal, Mr Jordan contended that these decisions were either distinguishable, because they did not directly address the matter in issue, or alternatively that they dealt with the nullity argument only as obiter dicta.

Submissions

[8]      Mr Anson for Mr Jordan conceded that there had been no prejudice to his client and that the appeal had been brought as a matter of principle.  He referred to relevant case law and submitted that there are conflicting pronouncements on the s 19B procedure.  He argued that if an enforcement officer elects to use the s 19B fast track procedure, the officer is bound to follow it through.  He then submitted that the cases suggest that if an officer elects the s 19B fast track procedure but fails to follow it through, the officer is precluded from prosecuting the same case in the ordinary way.    He  subjected  both  Kopua  and  McNeill  to  detailed  scrutiny,  and suggested  that  neither  addresses  the  situation  where  there  is  no  difference  in substance between the two informations laid.   He noted that there were two informations laid in the present case, both pursuant to s 12 of the Act, and that both were  before  the  Court  on  18  November  2011.    He  submitted  that  the  practice endorsed by McNeill should be regarded as an abuse of the Court’s process, and that where  an  information  is  laid  and  filed  “in  a  sacrificial  way”  to  purge  the

transgression  of  a  mandatory  time  limit  and  to  circumvent  that  time  limit,  the

1      Kopua v Police HC Palmerston North AP 22/86, 19 August 1986.

2      McNeill v Ministry of Transport HC Dunedin AP 12/92, 2 April 1992.

information should be treated as being invalid ab initio and a nullity.  He submitted that such informations are laid in breach of the enforcement officer’s express duty to comply with the fast track procedure.

[9]      Mr Stevens for the Crown submitted that the issue was comprehensively considered by the High Court in McNeill.   He submitted that that case had been correctly decided, and that, essentially, what was in issue was what best promoted the interests of justice.  He argued that it was clearly in the interests of justice that persons in Mr Jordan’s position should not be able to escape the consequences of their actions.

Analysis

[10]     The starting point is s  12(1) of the Summary Proceedings Act 1957.   It provides as follows:

12       Commencement of proceedings

(1)       Except where the defendant has been arrested without warrant, all proceedings  brought  under  this  Part  of this Act  shall, subject to sections 20A and 21 of this Act, be commenced by the laying of an information or the making of a complaint.

…

[11]     Section 14 provides the time limit within which an information must be laid. It provides as follows:

14       Time for laying information

Except where some other period of limitation is provided by the Act creating the offence or by any other Act, every information for an offence (other than an offence which may be dealt with summarily under section 6 of this Act) shall be laid within 6 months from the time when the matter of the information arose.

[12]     Once an information has been laid, then any District Court Judge, Justice, Community Magistrate or Registrar may issue a summons to the defendant in the

prescribed form.3

3      Section 19(1)(a).

[13]     Sections  19A  and  19B  permit  departures  from  this  standard  procedure. Section 19A provides for a summons to be issued following an arrest, and s 19B deals with the issue of a summons following an evidential breath test.

[14]     Relevantly, s 19B of the Act provides as follows:

19B     Summons following evidential breath test

(1)       If a person undergoes an evidential breath test under section 69 of the Land Transport Act 1998 and the test is positive, but the person who  underwent  the  test  does  not  advise  an  enforcement  officer within  10  minutes  of  being  advised  of  the  matters  specified  in section 77(3)(a) of the Land Transport Act 1998 that the person wishes to undergo a blood test, an enforcement officer may sign and serve on the person a summons in a form prescribed for the purposes of this section.

(2)       Every such summons shall require the person to appear on a day not later than 2 months after the date of the summons at the Court where the information required by subsection (3) is to be filed.

(3)       An information under this Part of this Act in respect of the offence with which the person is charged shall be laid and filed by an enforcement officer as soon as practicable after the evidential breath test was administered, and in any event not later than 7 days after the day the test was administered.

(4)       It is the duty of every enforcement officer who issues a summons under this section to ensure that the information required by subsection (3) is laid and filed.

…

[15]     As can be seen, s 19B effectively reverses the normal procedure of laying an information, filing the information, and then issuing a summons.  Under s 19B, the commencing procedural step is the issuance and service of the summons by the enforcement officer.  Once that step is taken, an information is to be laid and filed within the time limit detailed in s 19B(3).  This procedure expedites the bringing of drink driving prosecutions in cases where there is no need to send blood specimens away for analysis.  Section 19B permits an enforcement officer to issue a summons in the prescribed form, on the assumption that within seven days an information will be laid in Court.

[16]     This fast track procedure is not obligatory.  An enforcement officer is free to use this special procedure or not, as he or she sees fit.4

[17]     In the present case, the officer elected to follow the fast track procedure on

1 June 2010. Although the summons was served, the information was not laid within the seven day period specified in s 19B(3).  It was not laid until 10 June 2010, after the seven day period detailed in s 19B had expired.

[18]     Can an information laid out of time under s 19B(3) be dismissed and can the Court proceed on a fresh information laid thereafter, but still within the ultimate six month period specified in s 14?

[19]     This   issue   was   touched   on   in   Kopua   and   seemingly   authoritatively determined by the High Court in McNeill.  In the latter case, the appellant was issued a summons under s 19B, but the information was laid beyond the seven day period stipulated by subs 19B(3).  The information was dismissed without prejudice, and a new  information  was  laid.    The  appellant  argued  that  the  failure  to  lay  the information within the seven day period precluded the Court from dismissing the information without prejudice, and the result was that a second information was both statute barred, and open to a plea of autrefois acquit.  Tipping J concluded that the second information was not statute barred.  His Honour held or observed as follows:

(a)      The alternative procedure laid down by s 19B is not a mandatory procedure.   The purpose of the fast track procedure is to enable a summons  to  be  served  on  a  suspect  at  the  time  of  his  or  her undergoing the testing procedure.  This avoids the necessity of finding the suspect again for the purpose of serving a summons after the information is laid.

(b)The summons is simply the method by which the suspect is given notice that he or she is required to attend the Court at a stated time and

place.  It is the information which the Court is ultimately required to

4      Ministry of Transport v Kendall (1989) 5 CRNZ 287; O’Connor v Ministry of Transport

HC Whangarei AP 27/89, 7 September 1989.

determine.  The s 19B procedure enables the summons to be served before the information, but on the basis that the information must follow as soon as possible thereafter, and in any event, within seven days.  The summons has no independent life of its own.  It is simply the vehicle by which the suspect is summoned to Court.

(c)      Where an information has been laid outside the statutory timeframe, the suspect is not in peril of conviction, because the information has not  been  validly  laid.    A second  information  cannot  therefore  be defended on the basis of autrefois acquit.5

(d)Section 19B(3) cannot be regarded as providing “some other period of limitation” as those words are used in s 14.   When Parliament introduced the fast track procedure under s 19B, it cannot have intended that if the s 19B procedure miscarried for some reason, the prosecutor was precluded from laying a further information provided this was done within the ordinary period of limitation laid down by s 14.   The limitation period relates to the offence, and not to the procedure by which the offence is prosecuted.

(e)      Parliament must have intended that the general six month period of limitation applying to s 19B offences should continue to apply, even though the period of limitation for informations laid under the fast track procedure is cut back to seven days.   While the fast track procedure must be followed by an enforcement officer if he adopts the same,  if  the  procedure  miscarries  in  circumstances  where  the defendant has never been at risk for valid conviction and the subject matter of the information has never been examined on the merits, then a further information of the conventional kind under s 12 cannot be regarded as statute barred by the seven day time limit contained in s

19B(3).

5      See also Kopua v Police HC Palmerston North AP 22/86, 19 August 1986.

(f)      It followed that the appellant’s conviction on the second information was  not  a  conviction  based  on  an  invalid  information.     The information was not statute barred.

[20]     The McNeill principle has been adopted in a large number of decisions since, both in the District Court6 and in the High Court.7

[21]     Is this authority nevertheless wrong?

[22]     First,  Mr  Anson  challenged  Tipping  J’s  observation  that  the  time  limit contained in s 19B(3) is not “some other period of limitation… provided for… by any other Act”, as those words are used in s 14.

[23]     With respect to Mr Anson, I cannot see that there is anything in this criticism. Tipping J clearly addressed the issue.   He concluded that the contrast in s 14 is between  the Act  creating  the  offence  and  any  other Act  and  he  held  that  the Summary Proceedings Act is relevantly “any other Act”.   He then asked himself whether s 19B(3) could reasonably be regarded as providing “some other period of limitation” for the purposes of s 14 and concluded that it could not.   He did not consider that when Parliament introduced the fast track procedure under s 19B, it intended that if the procedure miscarried, the prosecutor was precluded from laying a further information provided that that was done within the ordinary period of limitation laid down by s 14.   He reached that view because the s 19B fast track procedure is not mandatory.   He observed that if the fast track procedure had not been used, the information laid in November 2010 would have been within the general period of limitation.   As the Judge observed, the s 19B(3) limitation is a period of limitation provided for the fast track procedure, but it is not a period of limitation provided for the breath alcohol offence with which the offender is charged.

To my mind, the Judge’s reasoning and conclusion are clearly correct.

6      See, for example, Police v Martin [1997] DCR 187; Police v MacDonald [1994] DCR 142;

Police v Armstrong [2008] DCR 722.

7      Police v Armishaw (1993) 10 CRNZ 461; Police v Edwards [2006] DCR 217; McKenzie v

Police HC Wanganui CRI 2010-483-53, 4 November 2010.

[24]     Mr Anson then submitted that Tipping J failed to place any or any sufficient weight on s 19B(4).

[25]     Again, this submission does not stand close analysis.  The Judge expressly acknowledged that if an enforcement officer adopts the fast track procedure, he or she must follow the statutory requirements for that procedure.  However, he went on to contemplate what occurs if the procedure miscarries.

[26]     Mr  Anson   asserted   that   the   procedure   will   often   miscarry   because enforcement officers neglect the duty imposed on them by s 19B(4).  He referred to Police v Martin,8  where the Court referred to the s 19B time limit being breached regularly, and referred to the practice of filing “straw man” informations which anticipate a breach of the s 19B time limit.

[27]     If that is the case, (and I do not know if it is), then the appropriate remedy is for Parliament to address the same.  It does not compel the conclusion that Tipping J’s reasoning or conclusions were in error.

[28]     Mr Anson submitted that the Court in McNeill did not address or reconcile dicta in Kendall, where the Court emphasised that once a summons is in the required form, and it has been signed and served, the enforcement officer is bound to follow the procedure laid down in s 19B(3).

[29]     Once again, I do not consider that Tipping J overlooked that authority or that even if he did, it would have made any difference.  The Judge referred expressly to Kendall.9     He also referred to the s 19(4) obligations.10     The Judge targeted his observations and findings to what he considered Parliament intended.   Again, it seems to me that the Judge’s approach was clear, and that his ultimate conclusions were correct.

[30]     Mr Anson submitted that on the authority of McNeill, the second information could only be valid if the first information was deemed to have been filed pursuant to

8      Police v Martin [1997] DCR 187 (DC).

9      McNeill v Ministry of Transport HC Dunedin AP 12/92, 2 April 1992 at 3.

10     Ibid 8–9.

the s 19B procedure.  He argued that it is difficult to see how an information declared a nullity can be deemed to have been laid or filed, or to see how an information completes the s 19B procedure where it is a nullity and does not comply with that procedure.

[31]     In   my  view,   and   with   respect   to   Mr  Anson’s   carefully  constructed submissions,  this  argument  misunderstands  the  effect  of  McNeill.    In  McNeill, Tipping J acknowledged that an offender faced with an information laid in breach of s 19B(3), is not at risk of conviction.  His Honour’s ruling was that the conviction on the second information which was laid within the six month timeframe specified by s 14 was not a conviction based upon an invalid information.  That was because the second information was not statute barred.  The first information was not validly laid under s 19B(3), and therefore the offender was not at peril of conviction under that information.  Nor could he defend the second information on the basis of autrefois acquit.

[32]     In  the  present  case,  as  in  McNeill,  the  first  information  was  laid  in  an endeavour to comply with s 19B(3).  The relevant time limit was breached and the Police sought to remedy the breach by laying a fresh information.   The second information was not laid under s 19B.  Rather, it was laid under s 14.  The summons served under s 19A(1) had served its end because the offender was before the Court. As Tipping J observed in McNeill, it had no independent life of its own, and it was the information which the Court was required to determine.

[33]     In  my judgment,  the  District Court  was  bound  by the  findings  made  by Tipping J in McNeill.  Those findings have been upheld in subsequent High Court decisions.  The matter was not at large, and I am not persuaded that there was any error in McNeill.  In my judgment, it was and it remains good law.

[34]     The appeal is dismissed.

Wylie J