Kane v Police HC Christchurch CRI-2010-409-000053

[2011] NZHC 1585

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000053

BETWEEN  STEVEN PAUL KANE Appellant

ANDPOLICE Respondent

Hearing:         20 July 2011

Appearances: Appellant in Person

T J MacKenzie for Respondent

Judgment:      2 August 2011

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

2 August 2011 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Raymond Donnelly & Co., PO Box 533, Christchurch Mail Centre, Christchurch 8140

Copy to:

S P Kane, 262 Centaurus Road, St Martins, Christchurch 8022

KANE V POLICE HC CHCH CRI-2010-409-000053 2 August 2011

[1]      Mr Kane was convicted on:

(a)      One charge of careless use of a motor vehicle; and

(b)      One charge of omissions from a log book.

[2]      He appeals the careless use conviction on the basis that he was not served a summons in accordance with the provisions of the Summary Proceedings Act 1957 and in particular s 24(1)(a)-(c).

[3]      He separately appeals the conviction on the log book omissions on the basis that he was served with two conflicting infringement notices, one referring to a fine of $3,000 and the other referring to a fine of $300.  He also complains that he has been subject to disproportionate attention by the Land Transport Agency.   He considers that there are elements of malice in the prosecutions.

[4]      I deal with each appeal in turn.

Careless use

[5]      Section  24(1)(a)-(c)  prescribes  the  method  by  which   a  summons  of proceedings must be served.  In particular it specifies:

24       Mode of service of documents on defendant

(1)       Every summons to a defendant and every other document which is required to be served on a defendant shall be served on him in one of the following ways:

(a)       By being delivered to him personally or by being brought to his notice if he refuses to accept it; or

(b)       By  being  left  for  him  at  his  place  of  residence  with  a member of his family living with him and appearing to be of or over the age of 18 years; or

(c)       By being sent to him by registered letter addressed to him at his last known or usual place of residence or at his place of business; or

...

[6]      Counsel for the Crown accepts that Mr Kane was not served in accordance with  this  section,  but  rather  a  notice  of  summons  was  served  on  a  person  at Mr Kane’s premises, who was not a member of the family.  That person did in fact deliver  the  notice  of  summons  to  him.    But  Mr  Kane  makes  the  point  that  is irrelevant, as it did not strictly comply with s 24.

[7]      Plainly, the service suffers from procedural irregularity.  The critical question remains, however, whether or not that irregularity gives rise to a proper basis for appeal and overturning the conviction.

[8]      Mr Kane openly admitted that he knew about the impending trial but elected, on advice, not to attend.  Mr Kane has also indicated that he does wish to defend the careless use charge and that he believes he has a sustainable defence.  All of this raises a serious issue of game playing by Mr Kane and his advisor. He took the risk that on appeal this Court might not look favourably on such a tactical approach to prosecution. He also wasted Court time and resources by adopting that tactic.

[9]      However, I also acknowledge that the legislation employs a prescriptive technique for service.   That must be for a reason, namely to provide surety that notices are received by accused.    It is certainly sloppy practice for service to be effected the way that it was in this case. This Court cannot simply ignore it.

[10]     Overall this Court must be concerned to ensure that the statutory procedures laid down by Parliament are complied with and on that basis I will set aside conviction and the fine.

[11]     However, as a measure of the Court’s concern at the gaming of the system I will impose a cost order against Mr Kane.   I see this as a proper middle ground between protection against clear procedural irregularities and to discourage gaming of the system.

[12]      I do not propose to refer this back for reconsideration as enough Court time and expense has been wasted on this.

Logbook entry

[13]     In a further display of open honesty, Mr Kane admitted that there was a logbook offence.   He, however, argues that there was yet a further procedural irregularity, namely, the issuance of two notices of infringement, one recording a fine of $300 and one recording $3,000.  Mr Kane says that if notices are to be issued they should be accurate and not confusing to the recipient.

[14]     In reality, Mr Kane was advised of the correct figure.   There was no real prejudice to him.   He committed the offence.   On that basis I am not prepared to overturn the conviction.  In any event, I see no procedural irregularity given that he was advised of the true infringement figure.

Costs

[15]     As foreshadowed, Mr Kane shall pay costs in this Court in the sum of $950.

Whata J