M v Police HC Rotorua CRI 2008-463-78

[2008] NZHC 1906

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2008-463-78

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 December 2008

Appearances: J Temm for the Appellant

C Macklin for the Respondent

Judgment:      3 December 2008

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr J Temm, Barrister, Rotorua

Mr C Macklin, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

M V NEW ZEALAND POLICE HC ROT CRI 2008-463-78  3 December 2008

[1]      Mr M   appeals against conviction on a charge of disorderly behaviour.

[2]      He was seen by a police patrol car across the road from a bar in Taupö at 2:30 a.m. urinating in a garden.  He was taken back to the police station.  Mr Macklin, for the respondent, having spoken to officers at the police station, confirms that Mr M   was completely co-operative.  Mr M  , at the police station, was offered a document described as “Notice to Registrar of guilty plea (Summary Proceedings Act 1957 s 41(1))”.  Mr M   signed this.  He said that his understanding, from a discussion with the police officer who was dealing with him, was that there could be a fine.  He had not appreciated that a conviction might result.

[3]      In due course the notice was dealt with on its face as a guilty plea.   The conviction was entered in Mr M  ’s absence and he was fined $250 and ordered to pay costs of $130.

[4]      Mr M   bases his appeal on what might be described as a question of fairness and consistency.  It relates to the fact that the charge he faces is one eligible for diversion and almost certainly would have resulted in diversion.  Mr Macklin, for the respondent, helpfully and responsibly confirmed that this would have been the case.  He also explained to me that the Police have in fact changed their procedures. A person in circumstances similar to those of Mr M   would have been given the “Notice to Registrar of guilty plea” to take away and consider in the cold light of day.   A person in Mr M  ’s circumstances would also have had the diversion scheme explained to him.

[5]      Had Mr M   got diversion there would have been some form of “penalty”. Mr Temm explained that often this would involve attendance at the local police station and undertaking some work.  In some cases there might be a payment to an appropriate charity.   There are a variety of ways in which these matters are dealt with.

[6]      I am satisfied in these circumstances that the proper way of dealing with this is to allow the appeal, quash the conviction and discharge Mr M   without conviction.

[7]      There is a remaining question as to whether some penalty should still be imposed, and there is jurisdiction to do that on a discharge without conviction. However, in this case it has been necessary for Mr M   to instruct solicitors and engage counsel.  In my judgment that was a proper course to take.  The end result is that the cost to Mr M   as a consequence of his own stupid behaviour is greater than it would have been if there had been diversion.  In consequence I do not intend

to impose any additional penalty.

Peter Woodhouse J