K v Police HC Christchurch Cri-2010-409-143

[2010] NZHC 1727

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000143

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 September 2010

Counsel:         Appellant appears In Person

S C Carter for Respondent

Judgment:      23 September 2010

ORAL JUDGMENT OF PANCKHURST J

[1] Mr K has sought to appeal a decision of Justices of the Peace in which they declined to award costs under the Costs in Criminal Cases Act 1967 following the withdrawal of an infringement notice.

[2]      In November 2008 Mr K   was stopped at Waikari and charged with an infringement of exceeding the speed limit by driving at 112 kilometres per hour.  He invoked  his  right  to  defend  the  allegation  made  against  him.    The  case  was eventually,  after  various  developments  into  which  I need  not  go,  set  down  for

hearing in the Rangiora District Court on 2 July 2010.

K V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000143  23 September 2010

[3]      In advance of that hearing the police sent a letter to Mr K   advising him of their intention to seek leave to withdraw the infringement notice.  This was sent to Mr K   at Blakes Road, a road which is in or near Prebbleton, whereas, his correct address is not Blakes Road but simply RD 6, Christchurch.  In any event he did not receive the letter, attended the Rangiora Court and, when the infringement notice was withdrawn by leave of the Justices, made an application for costs.

[4] This was entirely understandable given that s21(8)(d) of the Summary Proceedings Act 1957 provides that in a traffic infringement context, where a notice of hearing is filed so that the case may be heard on a defended basis in the District Court “the provisions of this Act [i.e. the Summary Proceedings Act] and the Costs in Criminal Cases Act 1967 shall apply with such modifications as are necessary.” Hence, Mr K correctly understood that it was competent for the Justices to grant costs and he made an application to that end.

[5]      It  was  declined  for  reasons  which  I  will  not  go  into,  but  which  were essentially procedural in nature, namely that the prosecutor indicated the appropriate course was to file a written application and that had not been done.   Hence, costs were not awarded and nor, in my view, was the matter properly inquired into by the Justices.  Whether they should or should not have awarded costs is not for me to say, but they should at least have determined the matter on its merits in terms of the Act. Mr K   then filed a notice of appeal to this Court dated 16 July 2010.

[6]      Ms Carter, in her submissions in advance of the appeal, drew attention to s115 of the Summary Proceedings Act which governs general rights of appeal to this Court.   Subsection (1) provides that where a District Court “determines any information” and in the result convicts a defendant, or makes an order (including an order declining an application for the payment of costs), a right of appeal to this Court lies.

[7]      Counsel also drew attention to a number of decisions of both this Court and the Court of Appeal in which the interpretation of s115 has been considered.   In particular, the words “where a District Court determines any information” have been put under the microscope.  The then Chief Justice, Barrowclough CJ did so in Burton

v Police [1]  and concluded that unless the information had been determined in the District Court as opposed to withdrawn by leave, there was no right of appeal.  His reasoning in that case has been adopted by the Court of Appeal in Police v Norman,[2]

Police v S,[3]  Davies v Ministry of Transport [4]  and Ministry of Fisheries v Dowey.[5]

Hence, there is a line of cases which have confirmed that absent a determination of the charge on its merits, there is not a right of appeal to this Court.  Put another way, where an information is withdrawn by leave, neither that decision nor costs decisions in relation to the withdrawal are susceptible of appeal.

[1] Burton v Police [1961] NZLR 698.

[2] Police v Norman [1975] 1 NZLR 391.

[3] Police v S [1977] 1 NZLR 1.

[4] Davies v Ministry of Transport [1989] 3 NZLR 300.

[5] Ministry of Fisheries v Dowey [1998] 3 NZLR 5.

[8]      Mr K  , unsurprisingly, expressed surprise at this being the case and I agree with him that it is a surprising situation.  However, that is the law.  I am bound by the Court of Appeal decisions.  Regardless of what view I might hold as to the merits of the costs determination in the Rangiora Court, I am in no position to review the matter.

[9]      For these reasons the appeal must be dismissed for want of jurisdiction.

Solicitors:

Appellant - Mr J B K  , RD 6, Christchurch (or PO Box 16831, Hornby, Christchurch 8441).

Raymond Donnelly & Co, Christchurch for Respondent