L v Police HC Auckland CRI-2010-404-312

[2010] NZHC 1900

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-312

BETWEEN  L

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         4 October 2010

Appearances: C L   the Appellant in person

E R Harrison for the Respondent

Judgment:      4 October 2010

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

E R Harrison, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

Copy to:

Mr C L  , 210 Airfield Road, RD2, Papakura 2582.

L V NEW ZEALAND POLICE HC AK CRI-2010-404-312  4 October 2010

[1]      This is an appeal against conviction.   The appellant was convicted in the Papakura District Court on 16 June 2010 before two Justices of the Peace, on the charge of careless driving.

[2]      He pleaded guilty and was fined $600 and court costs of $130.

[3]      The conviction was, in my judgment, properly entered, although some brief background is necessary.   The careless use occurred on 30 October 2009 at Mill Road, Alfriston, when the appellant collided with a vehicle on a round-about which clearly he had not seen.

[4]      The initial approach taken by the New Zealand Police was one of leniency. There were no injuries in the accident although the appellant himself appears to have lost consciousness for a while.   The Police proposal was to divert the appellant, conditional on him completing a defensive driving course within a period of two months.

[5]      There was no strict compliance with that condition.  As a result the Police, understandably, had the matter recalled in the Papakura District Court and sought a conviction.

[6]      I note from the information sheet that the appellant at all relevant times had assistance from a Mandarin interpreter.

[7]      The reasons advanced by the appellant as to why he did not complete a defensive driving course within the stipulated two month period are:

a)        Translation difficulties.

b)Anxiety  on  the  part  of  his  family  in  Taiwan  which  led  to  him returning to Taiwan for some weeks for medical checks there.

c)        Failure  to  appreciate  that  he  should  have  communicated  with  the

Police and told them that he needed more time to complete the course.

d)Difficulty experienced by the organisers of the course (the appellant had already embarked on the course before the diversion arrangement was made), in training him without assistance from an interpreter.

[8]      I am satisfied that the appellant’s English language skills, despite the fact that he has lived in New Zealand for at least nine years, are minimal.

[9]      It is important to stress that, whether or not a person is diverted rather than prosecuted to the full extent, is entirely a matter of prosecutorial discretion.   That discretion is exercised by the New Zealand Police and is not a matter in which this Court should interfere.   Indeed, for sound constitutional reasons, prosecutorial discretion is not a matter which will concern this Court.

[10]     Despite my expressing the view that there was unlikely to be any successful attack on the conviction, the appellant wanted to have the opportunity to explain to a Judge, who would understand his predicament, exactly why he did not comply with the diversion condition.

[11]     To his credit the appellant seems to have undertaken an advanced driving skills course, also being a defensive driving course, and has produced photocopies of the relevant certificates.  That course was completed at the end of August 2010.  He has thus complied with the condition of diversion, but to no effect, since he did not comply within the two month stipulated period.

[12]     Ms Harrison, has sensibly in this situation, having heard the matters advanced by the appellant, taken instructions.   In the circumstances the Police would not oppose the conviction being quashed given first that the defensive driving course has been completed and secondly on the basis that the fine which would otherwise be payable by the appellant is instead paid by way of a contribution towards prosecution costs.

[13]     This outcome would be acceptable to the appellant.  It is in the circumstances acceptable to the Court.

[14]     I am not able to discern any particular prejudice which the conviction would bring to the appellant.   Nonetheless I accept that for a mature man in his position who has no previous convictions and a hitherto unblemished driving record, the conviction results in a certain loss of face.

[15]     Thus, on the basis helpfully advanced by Ms Harrison I allow the appeal. The conviction entered against the appellant in the Papakura District Court on 16

June 2010 is quashed.  That is not to say the conviction was improperly entered.  It was proper.  All that is being done is to restore the appellant to the position he would have  been  had  he  complied  with  the  diversion  condition  within  the two  month period.

[16]     As a condition of allowing the appeal the appellant is ordered to pay, within

30 days and without fail, the sum of $600 towards the costs of the Police prosecution in the District Court.

[17]     That order, being in the nature of a monetary order, is in substitution for the

$600 fine and ordered court costs of $130 which, of course, fall with the quashing of the conviction.

.......................................… Priestley J