Lowther v Police

[2014] NZHC 472

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-409-132 [2014] NZHC 472

MARC WILLIAM LOWTHER Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:                   13 March 2014

Appearances:           Appellant in Person

K Bell for Respondent

Judgment:                14 March 2014

RESERVED JUDGMENT OF MANDER J

[1]      Mr Lowther was served with two infringement notices; for failing to stop at a stop sign and using an unlicensed motor vehicle.  Those infringement offences are alleged to have occurred around 2.00 am in the early hours of Wednesday 15 May

2013, when the appellant was driving a motor vehicle in Peterborough Street, Christchurch.  As he approached Madras Street, which is an intersection controlled by a stop sign, his vehicle was observed slowing slightly before turning left but, so it is alleged, he did not come to a stop.  The appellant was subsequently stopped by Police and a check found that the vehicle was unlicensed.

[2]      In  accordance  with  the  infringement  offence  procedure,  Mr  Lowther indicated  that  he  wished  to  defend  or  be  heard  in  relation  to  the  infringement offences, and the matter was subsequently called before Justices of the Peace on

6 September 2013.  As a result of a discussion between the presiding Justices of the

Peace and Mr Lowther, guilty pleas were entered.   The charges were read to the

LOWTHER v NEW ZEALAND POLICE [2014] NZHC 472 [14 March 2014]

appellant and he pleaded guilty.  After having heard from the appellant, the Court fined Mr Lowther $150 and imposed Court costs on the failing to stop charge.  In relation to the licensing offence, he was discharged.

[3]      On the appeal, Mr Lowther submitted that the entry of a guilty plea was an error and that he had misunderstood the procedure.  He accepted that he had wished to plead guilty to the charge of operating an unlicensed motor vehicle.   In that regard, there was some information that Mr Lowther had started to make part payments in respect of his registration fee.  The Justices of the Peace did not think it necessary that any penalty be imposed in respect of that charge.

[4]      Mr Lowther contends on his appeal that he had a defence to the charge of failing to stop at a stop sign.  He claims that he did come to a complete halt upon pulling up at the stop sign.  He accepted his registration had lapsed.  He submitted that the guilty plea that he entered arose out of miscommunication between himself and the Justices of the Peace.

[5]      A transcription of the discussion between the Justices of the Peace and Mr Lowther has been obtained.  It is clear that the charge was read to him and that he indeed did enter a guilty plea.   However, two other material considerations arise upon a reading of the transcript.   The first is that Mr Lowther was anxious to be heard by the Justices of the Peace.  It is apparent that the appellant wished to explain certain matters relating both to his personal background and his driving on the night. He accepted that he had made an admission of guilt in respect of the registration charge by commencing payments towards the obtaining of the licence.  The Justices of the Peace indicated to Mr Lowther that he could admit guilt and that what he was now telling them could be used as mitigation.   The other option of pleading not guilty would require the Court to determine whether he was guilty or not.  In that regard, mention was made of Mr Lowther having already paid his fine, which was a reference to the payments that he had started in respect of the registration of his motor vehicle.  Mr Lowther was advised, “if you were pleading guilty we will give you a chance to continue what you are saying to –”.   At that point, Mr Lowther interrupted stating:

Okay so I’ll have a fair say then if I plead guilty which I’ve already made an admission of and then I’ll have my chance to have a say, is that correct?

[6]      The Justices replied, “That’s right”, to which Mr Lowther then stated, “Okay

I shall plead guilty then”. The charges were then read to him.

[7]      Secondly, after the entry of those pleas, Mr Lowther commenced explaining his position and matters about his past which were of concern to him.  In the course of addressing the Court, the appellant stated the following:

… There was some other things about the actual incident itself Sir.  Now I understand the law says that when you stop at a stop sign you must, your wheels must be refrained from rolling for at least a good second, you must be fully stopped.   When I stopped at the stop sign Sir I came, I did, at 2 o’clock in the morning with zero traffic around, my wheels did come to a halt, maybe not for the full entire second …

[8]      Mr Lowther then proceeded to speak about a number of irrelevant matters before further stating:

… And so how can their judgment [in reference to the Police] be that they’re saying  that  I  didn’t  actually  stop  when  I  came  to  a  substantial  halt  at

2 o’clock in the morning with zero traffic when they failed to see…

[9]      It would appear therefore that what Mr Lowther is now saying on appeal is consistent with what he was attempting to communicate to the Justices of the Peace that he did stop.  He appears to have been pre-occupied with wanting to be heard by the Court, particularly about some personal matters irrelevant to the infringement offence.  This appears to have influenced his decision to enter a guilty plea, perhaps misunderstanding the consequences of pleading to that particular offence, which he appeared at the time unable to sever from his acceptance of guilt in respect of the registration charge.

[10]     Ms Bell for the respondent helpfully drew my attention to the passage in the exchange between the Court and Mr Lowther which recorded his position in respect of the stopping allegation.

[11]     In my view there are concerns about whether Mr Lowther understood the jeopardy  he  was  placing  himself  in  by  pleading  guilty,  and  that  he  appeared

somewhat obsessed with being heard by the Court, even to the detriment of his legal position on the charge.  It is apparent from the subsequent discussion that he did not believe that he had committed the infringement offence.

[12]     The  approach  of  the  Justices  of  the  Peace  was  entirely  understandable. Mr Lowther was not easy to follow and as he has submitted to this Court, I think accurately, there was a miscommunication between the District Court and himself as to the position he was taking in respect of the infringement offence of failing to stop at a stop sign.   Accordingly, I accept that in fairness to him, his plea should be vacated.

[13]     The decision that remains is whether the matter should be sent back to the District Court for rehearing or the charge dismissed.   The incident, which it is apparent from the circumstances in this instance did not give rise to any public safety concerns (it being in the early hours of the morning with presumably little, if any, traffic), occurred back in May last year.  Mr Lowther has been diligent in attending to the matter.   He has followed the infringement offence procedure and attended Court to be heard on the charge, both in the District Court and subsequently on his appeal to this Court.  I am cognisant that the Justices of the Peace at first instance afforded Mr Lowther sympathy in imposing no fine or Court costs in respect of the licensing charge and indeed only imposed a fine of $150 on the failing to stop offence, which is the monetary penalty that he would otherwise have been liable to pay as an infringement fee.   On balance however I believe that the appropriate course is to dismiss the charge.

[14]     Accordingly, I allow the appeal, vacate the guilty plea and remit the fine and

Court costs. The matter is now concluded.

Solicitors:

Raymond Donnelly and Co, Christchurch

Copy to:

M W Lowther, Christchurch