Lucas v Police HC Auckland CRI-2011-404-263

[2011] NZHC 1277

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-263

BETWEEN  PATRICIA ROSE LUCAS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 October 2011 (by telephone)

Counsel:         C B Williams (on instructions from G J Newell) for Appellant

K L Bannister for Respondent

Judgment:      13 October 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 October at 12:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Stephen Anderson (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

COUNSEL Graeme Newell

LUCAS V POLICE HC AK CRI-2011-404-263 13 October 2011

[1]      The appellant appeals against a finding by Justices of the Peace that  an infringement offence relating to her driving was proved.  The date of the decision was 11 May 2010.

[2]      By Minute dated 3 October 2011 I granted the appellant leave to extend time for the filing of the notice of appeal and directed the registry to allocate a date for the hearing of the appeal.

[3]      I convened a telephone conference in the case this morning to discuss with counsel my concern that proceeding with an appeal in this Court would not be likely to resolve the matter and that it might be preferable for the case to be remitted to the District Court for rehearing.

[4]      The basis for my concern is that it is common ground that when the appellant appeared to defend the infringement notice she had with her the affidavits of two potential witnesses which she believed were material to her case.  She had received erroneous legal advice that she could tender the affidavits without calling the witnesses themselves.   The prosecutor objected to this and so the Justices of the Peace made their decision without considering the affidavits or hearing from the deponents.    Should  the  appeal  proceed  in  this  Court,  it  is  likely that  issues  of credibility would be raised and evidence might have to be given – or at least assessed as to possible weight.

[5]      In my view, the case got off to a bad start in the first instance.  The evidence for the appellant  that  should  have been  assessed  by the District  Court  was  not assessed.  That was not the fault of the appellant.   I have an unfettered discretion under s 131 of the Summary Proceedings Act 1957 to remit the case back to the District Court for rehearing.  My view is that this is the appropriate course to adopt. Ms Bannister  for  the  respondent  concurs,  as  does  counsel  for  the  appellant. Accordingly,  I quash  the finding of the Justices  of the Peace and  the  resulting

sentence.  I remit the case to the District Court for rehearing.

Brewer J