McCann v Police HC Auckland CRI-2011-404-315

[2011] NZHC 1278

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-315

BETWEEN  NICHOLAS DAVID MCCANN Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 October 2011 (by telephone)

Counsel:         E P Leary (on instructions from M Ryan) for Applicant

N M Whittington 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/COUNSEL

Mark Ryan (Auckland) for Applicant

Meredith Connell (Auckland) for Respondent

MCCANN V POLICE HC AK CRI-2011-404-315 13 October 2011

Background

[1]      Mr McCann seeks to appeal a conviction for failing to remain stopped for an enforcement  officer  contrary  to  s 52(1)(c)  Land  Transport  Act  1998.    He  was convicted by Justices of the Peace in the District Court at Auckland on 8 March

2011.  The judgment of the Justices of the Peace records that Mr McCann did not appear at the hearing.

[2]      Following an unsuccessful application for a rehearing, Mr Ryan, counsel for

Mr McCann, filed a notice of appeal in the District Court at Auckland on 24 August

2011.  The filing was, of course, outside the 28-day period provided for by s 116(1)

of the Summary Proceedings Act 1957.

[3]      By Minute dated 28 September 2011, I directed that if Mr McCann wished to proceed with the appeal he had to file a proper application for extension of time together  with  an  affidavit  in  support.    I stipulated  that  the  application  and  the affidavit must address the two matters which I have to consider – the reasons for the lateness of the filing of the application and the merits of the proposed appeal.

[4]      On 5 October 2011 Mr Ryan on behalf of Mr McCann filed an application for extension  of  time  for  filing  the  notice  of  appeal,  an  affidavit  in  support  from Mr McCann,  and  a  memorandum  of  counsel  in  support  of  the  application. Unfortunately, while adequately addressing the reasons for the delay in filing the notice of appeal, the documents are almost silent on the merits.[1]

Reason for delay

[1] Mr  Ryan  submits that the  applicant has a  positive defence  without saying what it  is  and

Mr McCann deposes to the effect that he would challenge the police officer’s evidence

[5]      The  defended  hearing  of  the  charge  was  scheduled  for  8 March  2011. Mr McCann’s grandfather died a few days before the hearing and on 7 March 2011

Mr Ryan was advised that the grandfather’s funeral was scheduled to take place in Christchurch on 8 March.   He was instructed by Mr McCann’s mother to seek an adjournment on the basis that Mr McCann would be attending the funeral.  Later that

day Mr Ryan wrote to the Court and to Police Prosecutions (by fax) asking for an adjournment and requesting the excusal of Mr McCann’s attendance.  Mr Ryan did not get a response from the Court or from Police Prosecutions and he did not attend at the Court when the case was called.

[6]      Upon learning that the matter had been dealt with by the Justices of the Peace in the absence of Mr McCann and counsel, and having received instructions to do so, Mr Ryan sought a rehearing.   This was declined by the Justices of the Peace on

22 August 2011 on the papers.  Mr Ryan was not served with a copy of the Police submissions in opposition to the application for rehearing, and nor was he given an opportunity to respond to them by the Justices of the Peace.

[7]      Mr Ryan has now chosen to address this Court through the standard appeal process rather than challenge the refusal to grant a rehearing by way of application for judicial review.   I discern, however, from the documents he has filed that he would seek  to  challenge both  procedures  adopted by the Justices  of the Peace, namely the entering of a conviction in the absence of counsel and the accused and subsequently refusing to grant a rehearing without seeking counsel’s response to the written opposition of the prosecutor.

Decision

[8]      This is an example of how protracted proceedings can result from a failure to follow basic procedures at the outset of a case.  Mr Ryan had a positive obligation to ensure that the District Court was advised of his client’s proposed absence from Auckland to attend his grandfather’s funeral.[2]    He had a positive obligation, in the absence of a response from the District Court to his application for an adjournment, to represent Mr McCann when the case was called.  Sending a faxed letter the day before a hearing does not guarantee that the request will be put before the Court prior to the hearing of the case nor, if it is, that it will be granted.

[2] In the event, Mr McCann, then aged 17 years, did not attend the funeral and spent part of

8 March 2011 at school.

[9]      There is nothing in the decision of the Justices of the Peace which indicates that they received the application for an adjournment but declined it.  I very much doubt that the application was ever put before them because given the context (the death of a grandfather and intended absence from Auckland to attend the funeral) I would expect it to have been a matter that would have concerned the Justices of the Peace.

[10]     Although  I  do  not  know  the  merits  (if  any)  of  Mr  McCann’s  proposed defence, I do not think anything would be gained by hearing an appeal in this Court which would focus on the merits and which might require the calling of evidence. Nor do I see any profit in regarding the appeal as being, in effect, an application for review of the decision not to grant a rehearing.   It is clear that Mr McCann had a right to defend the charge, that this included the right to have an application for adjournment properly heard and determined, and that because of the circumstances outlined above he was not afforded those rights.

[11]     At the telephone hearing today, Mr Whittington for the respondent submitted that I should not remit the case to the District Court for rehearing because it is not known what are the merits of the appellant’s case and there might well be no merits. He acknowledged, responsibly, that the outcome of an appeal in this Court would almost certainly be a remittal.   Mr Leary, on instructions from Mr Ryan, supports remitting the case to the District Court now.

[12]     I am not going to further protract the matter with hearings in this Court.  It is clear to me that the merits of Mr McCann’s case need to be adjudicated by the District Court.  Accordingly, I grant the application for extension of time to file a notice of appeal, I quash the conviction and the sentence and I remit the case to the

District Court at Auckland for rehearing.[3]

[3] Summary Proceedings Act 1957, s 131.

Brewer J