K v Police HC Wellington CRI-2005-485-126

[2005] NZHC 89

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-485-126

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 October 2005

Appearances: Appellant in person

M S Anderson for Respondent

Judgment:      5 October 2005

JUDGMENT OF GODDARD J

Factual background

[1]      On 28 May 1997, the appellant was convicted in the District Court on two charges of being in an enclosed yard without reasonable excuse.   The presiding Judge, Judge Dalmer, ordered him to come up for sentence if called upon within

12 months and to pay court costs of $75 and witness expenses of $150.

[2]      The appellant then appealed against his convictions to the High Court and on

3 September 1997 Doogue J dismissed his appeal.  He then applied to the Court of

K V POLICE HC WN CRI-2005-485-126  5 October 2005

Appeal for leave to appeal but this was declined by the Court of Appeal on 26 March

1998.

[3]      Following this Mr K   sought a rehearing of his case in the District Court and his request was referred to Judge Dalmer and declined.  Advice of this was sent Mr K   by letter dated 10 December 1998 from a Deputy Registrar as follows:

Your letter and attachments were referred to His Honour Judge Dalmer. Unfortunately the Judge has no jurisdiction to reopen this case as requested

by you.

Our only advice to you is to seek legal assistance from your lawyer.

[4]      On 1 October 2003 Mr K   filed a ‘complaint’ under s 74 of the Summary Proceedings Act 1957, stating that his conviction was an injustice that was still causing him significant hardship, that being the loss of his taxi licence consequent upon his conviction.

[5]      In October 2003 Mr K   applied again to Judge Dalmer for a rehearing of his case, this time under s 75 of the Summary Proceedings Act, having discovered that  his  reliance  on  s  74  of  the  Act  was  misplaced,  as  that  section  deals  with (criminal) proceedings brought by way of complaint, rather than by way of information, and references to an “informant” include a “complainant”.  Section 74 does not in fact enable a convicted person to make a “complaint”.

[6]      The major ground of Mr K  ’s application under s 75 was alleged perjury on the part of his arresting officer for the purpose of securing his convictions.   This perjury was said to have resulted in contamination of all the police witnesses and the evidence.  Mr K   enclosed evidence of this alleged perjury with his application, in the form of his relevant Police charge sheet containing a general description of him at the time of his arrest and photographs taken of him when he was processed at the police station.  In his evidence the arresting officer had described Mr K   as “being found sweaty and muddy in the place where he was clearly found” by a tracker dog. Judge Dalmer had found this evidence of the state in which Mr K   was described as having been found “hardly consistent with a walk around Kelburn Parade”.  Mr K  ’s complaint is that this description by the arresting officer was false and was

not borne out by the description on the charge sheet or by his appearance in the photographs, but clearly the officer’s evidence had affected his credibility in Judge Dalmer’s eyes.

[7]      Judge Dalmer declined to grant a rehearing, however, pointing out that the matters now raised in Mr K  ’s s 75 complaint either were or could have been raised in his appeal against conviction and stating:

There has to be an end to litigation.  There has already been an appeal where these matters and others were or could have been raised.   No grounds for rehearing established.  Application refused.

[8]      Mr K   submitted, however, that his counsel (Mr Lakshman) had been prevented from raising all relevant issues on appeal, as the appeal Judge, Doogue J, had declined to hear Mr Lakshman out.

[9]      On 20 June 2005, Mr K   lodged a further request for a rehearing under ss 74 and 75 of the Act, and s 27 of the New Zealand Bill of Rights Act 1990.  His application was this time considered by Judge Grace, as Judge Dalmer had retired from the Bench in the intervening period, although Mr K   had directed his application to Judge Kelly for her consideration in conjunction with a hearing she is apparently conducting in connection with reinstatement of his taxi licence.

[10]     In support of his new application Mr K   again set out as his grounds the perjury allegation; an alleged failure by Judge  Dalmer  to  investigate his  earlier complaint  of  2003;  Judge  Dalmer’s  mistaken  belief  in  1998  that  he  had  no jurisdiction to deal with Mr K  ’s first application for a rehearing; and use of his “unjustified convictions … by the New Zealand Police to prevent him from seeking employment”.   In support of his application Mr K   again referred to the Police photographs of him, the charge sheet and the summary of facts relating to his case, and to the allegedly perjured evidence.

[11]     On 28 June 2005 Judge Grace issued a minute in which he refused to grant a rehearing of the informations, noting that the power to direct a rehearing was discretionary.  The Judge found four factors that, in his view, weighed against the grant of a rehearing:

a)       The time that had passed since the original decision;

b)       The dismissal of the earlier appeals;

c)       The earlier, unsuccessful application for a rehearing;

d)That the application was based on the appellant’s belief that the police officer misled the Court and this was an issue of credibility that would have been determined at the original hearing, and was not a ground for a rehearing.

[12]     It is from Judge Grace’s decision declining to grant a rehearing that the appellant now appeals.

Legal considerations

[13]     The  District  Court’s  power  to  order  the  rehearing  of  an  information  is contained in s 75 of the Act:

75  District Court Judge or Justice may grant a rehearing

(1)Where on the hearing of any information or complaint the defendant has been convicted or, as the case may be, an order has been made against him, the District Court Judge or Justice or Justices or Community  Magistrate  or  Community  Magistrates  who  presided over the Court before which the information or complaint was heard may, in his or their discretion, grant a rehearing of the information or complaint, either as to the whole matter or only as to the sentence or order, as the case may be, upon such terms as he or they think fit:

Provided that, if any such District Court Judge or Justice or Community Magistrate has since the date of the hearing ceased to hold office as such or died or left New Zealand, or if for any other reason it is impracticable that he should be present to hear the application for rehearing, any District Court Judge may grant a rehearing.

[14]     As is clear, and was accepted by Mr K  , the power in s 75 is entirely discretionary.  It is to be exercised where a miscarriage of justice would otherwise result (Adams on Criminal Law, SA75.05).

[15]     A perusal of the relevant authorities establishes that the High Court does not have jurisdiction to consider an appeal from a District Court Judge’s refusal to order a rehearing of an information or complaint under s 75:  Tuohy v Police [1959] NZLR

865.

[16]    This is because the operation of s 115 of the Act is predicated on the determination or deciding of  an information, as is  clear  from  the  wording of  s

115(1):

a District Court determines any information or complaint, and— (a)         Convicts any defendant; or

Makes any order…

[17]     A number of decisions since Tuohy  v Police have confirmed that the refusal of a rehearing under s 75 after conviction is not a determination of the information: Police v Norman [1975] 1 NZLR 391 (CA), Black v Fulcher HC WN M233/86 6

August 1986 (McGechan J).  The High Court’s lack of jurisdiction in this regard was most recently confirmed in Carr v Police HC AK A202/99 6 April 2000 (Randerson J).

[18]     It may be possible for a challenge to a refusal to grant a rehearing to be mounted by way of review, as adverted to by the Jurisdiction Manager Criminal in a letter of 28 June 1999 to Mr K  .  However, the scope of a challenge by review is narrow and in the present case such a challenge would not succeed on the basis of the material before me.  This is because, as Mr K   acknowledged, the granting of a rehearing involves the exercise of a discretion.  And, as Mr Anderson submitted, it is impossible to say that Judge Grace failed to exercise his discretion on a proper basis or failed to take into account and consider all of the grounds set out in Mr K  ’s application and ‘complaint’ of 20 June 2005.  It is both express and implicit in Judge Grace’s decision that he took all of those matters into account, including the Police photographs, the charge sheet, the  summary of  facts  and  the  notes  of  evidence submitted.

[19]     In conclusion, the High Court has no jurisdiction to grant a rehearing as requested by Mr K   pursuant to s 115 of the Act or jurisdiction to refer the matter back to the District Court for rehearing.

Conclusion

[20]     The application must be dismissed.

Solicitors:

Luke, Cunningham & Clere, Wellington, for Respondent

Delivered at 2.30pm on Wednesday 5 October 2005.