McKay v District Court at Auckland HC Auckland CIV 2007-404-257
[2007] NZHC 2033
•23 August 2007
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2007-404-257
UNDERThe Judicature Amendment Act 1972 and Part VII of the High Court Rules and the Summary Proceedings Act 1957 and the New Zealand Bill of Rights Act 1990 and the Common Law
BETWEEN BRENT ST JOHN LEO MCKAY Plaintiff
ANDTHE DISTRICT COURT AT AUCKLAND
First Respondent
ANDTHE NEW ZEALAND POLICE Second Respondent
Hearing: 9 August 2007
Appearances: B J Hart and A J Trenwith for the plaintiff
A M Powell and G V Wardell for the second respondent
Judgment: 23 August 2007
RESERVED JUDGMENT OF PRIESTLEY J
This judgment was delivered by me on 23 August 2007 at 4.00 pm pursuant to Rule 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date: …………………………
Solicitors:
B J Hart, Barrister, P O Box 47016, Ponsonby, Auckland
A M Powell, Crown Law Office, P O Box 2858, Wellington CentralN Cooke, P O Box 47016, Ponsonby, Auckland
MCKAY V DISTRICT COURT AND ANOR HC AK CIV 2007-404-257 23 August 2007
The issue
[1] Is there a jurisdictional requirement under the Summary Proceedings Act
1957 that informations laid summarily must be heard separately in the District Court unless a defendant otherwise consents?
The alleged offending
[2] In December 2005 the plaintiff had his driver’s licence suspended for three months because he had accumulated over 100 demerit points within a two-year period.
[3] One evening in late January 2006, a silver BMW motor vehicle was observed travelling along Tamaki Drive, Auckland. It passed a marked police vehicle at 85 km/h, 35 km/h above the speed limit.
[4] The blue and red flashing lights and sirens of the police vehicle were activated but the BMW accelerated away. Being hemmed in by traffic ahead, the vehicle pulled to the left and stopped. A police officer spoke to the driver through the vehicle’s open passenger window. The driver told the police officer to “get fucked” and drove off at speed towards the city. In the ensuing police pursuit the vehicle was clocked at speeds in excess of 140 km/h. It passed stationary traffic, stopped at a traffic light, then crossed to the incorrect side of the road. The vehicle turned left into The Strand and St George’s Bay Road travelling in excess of 90 km/h. In narrow Parnell streets it pulled away from the police vehicle.
[5] Shortly thereafter the police came upon another vehicle which exuded the smell of burning rubber. The driver of this vehicle and other members of the public indicated the direction of the fleeing BMW. It was found in the middle of Stanmore Street with a person the police believed to be the plaintiff trying to hide inside a gateway. This person attempted to avoid arrest and twice assaulted the police officer. He was taken to Auckland Central Police Station and processed.
[6] This alleged offending, unsurprisingly, resulted in a number of informations being laid against the plaintiff in the Auckland District Court. One charge of resisting arrest and two charges of assaulting a police officer in the execution of his duty were laid under the Summary Offences Act 1981. Under the Land Transport Act 1998 were laid charges of driving whilst suspended, failing to comply with the flashing blue and red lights, and dangerous driving.
The District Court’s response
[7] After various delays, which are of no concern, - although the procedural history suggests that in both this Court and the District Court the day of reckoning has been postponed for a lengthy period – a defended hearing was scheduled for
24 January 2007.
[8] The day before the hearing, the plaintiff sought an adjournment from Judge Thorburn. No formal application was before the Court for the charges to be heard separately. Nor did Judge Thorburn, when he declined the adjournment application, attempt to fetter the Judge who was to preside the next day.
[9] Having outlined the procedural history in the District Court, the Judge said:
[4] Mr Haskett has firmly submitted to me that I ought to adjourn, and I acknowledge the vigour of his request. He has an authority which sets the principle that summary hearings should be dealt with separately. I have rather peremptorily closed him down on that and indicated my general lack of interest in, without specific identified reasons establishing prejudice to the defendant and on merit, separating out a cluster of summary charges that arise out of one incident. As I have said matters which might classify in the overall assessment as a res gestae.
[5] This court daily hears summary matters, more than one arising out of the same incident, and if there is to be separation it will, in my view, not be simply as a matter of a principle, it would have to be on the basis of some demonstrated merit that that is necessary.
[6] I am unable to cite the authority but can do if required but there are English authorities which have been adopted by the New Zealand Courts which establish the importance of realism and convenience in summary matters hearing multiple charges arising out of one incident.
[7] Therefore, as I reiterate, I am singularly disinterested in separating out these charges and adjourning on that basis at this stage.
[10] The Judge also referred to possible problems with disclosure. The plaintiff had for some time been requesting the names of other police officers who had been present at the dénouement of the offending in Parnell, and also a photograph of the plaintiff’s face taken at Auckland Central Police Station. The Judge adjourned that matter.
[11] The Judge declined to vacate the 24 January fixture. He indicated he was not pre-empting any view the presiding Judge might take. The plaintiff made no application the next day for a separate hearing in respect of the six informations he faced. Rather, he informed the presiding Judge that judicial review proceedings were to be launched in the High Court. The District Court hearing, as a result, has been further adjourned.
Judicial review
[12] The plaintiff’s challenge under the Judicature Amendment Act 1972 in effect alleges jurisdictional error on the part of Judge Thorburn for not directing a severed hearing in respect of the six informations. It is expressly pleaded that the District Court has no jurisdiction to hear together multiple summary charges in the absence of the plaintiff’s consent.
[13] The plaintiff further says that the Judge placed undue weight on the procedural history of the six charges and, conversely, inadequate weight on possible prejudice if the six informations were heard together.
[14] A third cause of action relates to alleged prejudice flowing from disclosure. That issue did not occupy central stage at the hearing. Mr Powell sensibly conceded that disclosure should be made, observing that there had been no recent request for it.
[15] Finally, the plaintiff pleads that Judge Thorburn’s reasons for declining the adjournment were generally unreasonable and arbitrary and that pre-determination was evident. It is not necessary for me to determine these last issues. In any event, although the Judge “rather peremptorily closed … down” the plaintiff’s counsel on that issue, and indicated that he was “singularly disinterested” (which I assume is
synonymous with being uninterested), it is hard to criticise the Judge when he faced what must have appeared to be a last minute and a somewhat obscure jurisdictional argument without any cogent reasons being advanced why there should be separate hearings for aspects of the alleged offending which clearly arose out of the same event.
[16] The first respondent abides by the decision of this Court.
Discussion
[17] In Mr Hart’s submission there is a long-established rule of practice that informations should not be heard together without a defendant’s consent. In counsel’s submission (this not having been advanced in the District Court), the informations fell into two distinct groups. The first was the driving charges where identification was a possible issue. The second group was alleged assaults and resisting arrest in Parnell. It might well be that self-defence was an issue here.
[18] In counsel’s submission it would be unfair for the plaintiff to be faced with a hearing where, if he gave evidence in defence of the second group of charges, he would be exposed to cross-examination on the first group of charges, thus providing the prosecution with an opportunity to plug a vital gap if identification had not been proved. It was not sufficient to hear both groups of charges together simply because it was convenient. Rather, the interests of justice must dictate whether separate informations should be heard together. If a defendant did not consent to such a joint hearing then the Court had no jurisdiction to embark on one.
[19] Section 16(1) of the Summary Proceedings Act 1957 provides:
Information to be for one offence only
(1)Except where it is otherwise provided by any Act, every information shall be for one offence only:
Provided that an information may charge in the alternative several different matters, acts, or omissions if these are stated in the alternative in the enactment under which the charge is brought.
As a matter of observation and interpretation, this provision makes no reference whatsoever to informations being heard together only if a defendant consents. Indeed, the words of the statute do no more (unless elsewhere provided) than stipulate that each information must be limited to one offence. There is nothing in s 16(1) suggesting a jurisdictional prohibition on hearing a number of “one offence” informations together.
[20] Section 16 was considered by the eminent New Zealand jurist, Cooke J, in Transport Ministry v Maud [1975] 1 NZLR 97. Cooke J’s remarks are clearly obiter. The situation before him was that during an adjournment of the defended charge against Mr Maud of reckless driving, the possibility was raised with a Magistrate of a guilty plea to the lesser charge of careless use. When the hearing resumed, there was no amendment to the charge. In a reserved decision, the charge was amended by the Magistrate and Mr Maud was convicted on the lesser charge.
[21] There is, of course, under the Summary Proceedings Act, no analogous provision permitting a jury on an indictable charge to bring back a verdict on an included charge, as permitted by s 339(1) of the Crimes Act 1961.
[22] Cooke J, in an oral decision, stated that a Court in its summary jurisdiction must deal with only one charge at a time:
Summary jurisdiction is a creature of statute. It is a basic principle that, in the absence of statutory provision to the contrary, a Court of summary jurisdiction must deal with only one charge at a time: Edwards v Jones [1947] KB 659; 1 All ER 830; Brangwynne v Evans [1962] 1 WLR 267; [1962] 1 All ER 446; Hargreaves v Alderson [1964] 2 QB 159; [1962] 3 All ER 1019. There are, of course, various provisions to the contrary; and in some circumstances it is proper to hear together separate informations, but only by consent: Reilly v Police [1967] NZLR 842, 849. In our Summary Proceedings Act 1957 the basic principle is reflected in s 16, subs (1) of which provides:
“Except where it is otherwise provided by any Act,. Every information shall be for one offence only …”.
[at 99, emphasis added]
[23] Approximately five years later, Cooke J, now a member of the Court of Appeal, revisited s 16 in Collector of Customs v Woolley [1980] 1 NZLR 417. Woolley involved a defendant who faced two informations as a result of his failure to
declare at Customs a camera purchased overseas. The more serious charge was effectively one of smuggling. The lesser charge was one of making an erroneous Customs declaration.
[24] In the Magistrate’s Court, the defendant pleaded guilty to the lesser charge and not guilty to the smuggling charge. The defendant sought a conviction in respect of the guilty plea, indicating that he wished to lay the foundation for a plea of autrefois convict for the smuggling charge. The Magistrate refused and proceeded with the hearing. By way of background, Cooke J said this about courts of summary jurisdiction:
In considering whether that course was proper, it is first necessary to notice the principle that in general a Court of summary jurisdiction may hear only one charge at a time. In part that principle is embodied in s 16(1) of the Summary Proceedings Act, which lays down that, except where it is otherwise provided by any Act, every information shall be for one offence only. A proviso to the subsection allows an information to charge in the alternative several different matters, acts, or omissions if these are stated in the alternative in the enactment under which the charge is brought. The statutory requirement that in general every information shall be for one offence only goes back in the United Kingdom to the second of Jervis’s Acts, the Summary Jurisdiction Act 1848, s 10.
…
The statutory limit on the contents of an information could easily be evaded if it were permissible to hear more than one information against the same defendant at the same time. It has long been recognised that this can only be done with the defendant’s consent, and even then care has to be taken to exclude reasonable suspicion that evidence properly relating to one charge only has influenced the decision on the other charge. See Edwards v Jones [1947] KB 659; [1947] 1 All ER 830; Brangwynne v Evans [1962] 1 All ER
446; [1962] 1 WLR 267; Hargreaves v Alderson [1964] 2 QB 159; [1962] 3
All ER 1019; Sedwell v James [1980] Crim LR 110; Ah Khan v Cox (1902)
21 NZLR 645, 652; Monika v Police [1918] NZLR 300; Reilly v Police
[1967] NZLR 842, 849; Transport Ministry v Maud [1975] 1 NZLR 97.
[at 420]
[25] These judgments and approved authorities are clearly the origin of the assumed procedural rule in New Zealand that a court of summary jurisdiction should not hear two informations together without a defendant’s consent. A similar conclusion was reached by Tipping J in Hodges v Police (1987) 2 CRNZ 652. Tipping J, however, cited with approval a High Court of Australia decision, Munday v Gill (1930) 44 CLR 38, 89 in which Dixon J, reviewing cases in England, Victoria,
and New Zealand, stated that failure to give effect to the “right” of summary informations being entitled to separate hearings did not go to jurisdiction or the validity of a conviction, but was an irregularity only which could be waived. Dixon J considered this formulation to be “… in accordance with principles as well as with justice and convenience” (at 99).
[26] That observation, coupled with the plain wording of s 16, makes it, in my view, difficult if not impossible to contend that a District Court Judge’s failure to grant an adjournment, in the face of a defendant’s request for separate hearings, constitutes a jurisdictional error amenable to review.
[27] The obiter comments of Cooke J, both in the High Court and the Court of Appeal, have been questioned by Judge Moran in a District Court decision, Police v N [1999] DCR 927. The Judge considered the impact on the rule of a subsequent House of Lords decision, Clayton v Chief Constable of Norfolk [1983] 1 All ER 984. The Judge accepted the principle that consent was necessary to a joint hearing of two or more charges in the District Court was a longstanding one. He categorised this “principle”, however, as being a question of practice and procedure, not a question of jurisdiction (at 942).
[28] Both in Collector of Customs v Woolley and in his earlier judgment in Ministry of Transport v Maud, Cooke J refers to a line of English authorities starting with Edwards v Jones [1947] KB 659; [1947] 1 All ER 830, Brangwynne v Evans [1962] 1 WLR 267; [1962] 1 All ER 446 and Hargreaves v Alderson [1964] QB
159; [1963] 3 All ER 1019. That line of authority, however, was clearly rejected by the House of Lords in Clayton v Chief Constable of Norfolk (op cit).
[29] Lord Roskill, with whose speech all the Law Lords agreed, reviewed the authorities and went back to the reforming act which Sir John Jervis, the Attorney- General in the administration of Lord John Russell, steered through Parliament in
1848, a year of considerable social unrest in Britain and Europe.
Jervis’s Acts were a group of statutes which can fairly be described as a complete code defining what courts of summary jurisdiction might and might not thenceforth do. It seems to me clear that the relevant words of s
10 are directed to preventing duplicity in informations. They are not directed
to preventing as a matter of statutory prohibition either the trial of two or more informations at the same time or the trial of two or more offenders together where the relevant facts are sufficiently clearly related. The object of the rule against duplicity has always been that there should be no uncertainty as to the offence charged. But there is no such uncertainty where two or more informations are properly laid against an alleged offender. He knows that he is charged as stated in each information. Section 10 has of course long since been repealed. Its modern counterpart is r 12(1) of the Magistrates’ Courts Rules 1981, SI 1981/552, which reads:
‘Information to be for one offence only
Subject to any Act passed after 2nd October 1848, a magistrates’ court shall not proceed to the trial of an information that charges more than one offence.’
This rule is plainly designed to prevent informations being duplicitous.
…
What I think is clear is that by 1947 a rule of practice and procedure had evolved, whether or not it was correctly based on s 10 of the 1848 Act, which made it irregular for any magistrates’ court to try more than one information at the same time in the absence of consent. But the Ashbourne case shows that even in 1950 the rule had not become an absolute one and that certiorari would not issue to cure ‘a mere matter of some irregularity’, for example a failure clearly to obtain the necessary consent from the defendant. It can further be said that this rule developed during the ensuing
25 years so that by 1973 it had similarly become an irregularity to try together several defendants charged on informations in the absence of consent, even though the relevant facts were closely related.
It is plain that in some of these cases the Divisional Court reached its conclusion with reluctance since effect was having to be given to most
unmeritorious technicalities, as in the instant cases. It is also plain that a rule designed to avoid any risk of injustice to defendants had become in danger
of being an obstacle to the simple and sensible administration of justice in magistrates’ courts, where it is of particular importance that that administration should be both simple and sensible. Magistrates’ courts today
try the vast majority of criminal cases that arise for hearing in this country as well as many civil cases. Any rule of practice or procedure which make
their task more difficult or demands subservience to technicalities is to be deprecated and your Lordships may think that this House should now encourage the adoption of rules of procedure and practice which encourage
the better attainment of justice, which includes the interests of the prosecution as well as of defendants, so long as the necessary safeguards aremaintained to prevent any risk of injustice to defendants.
[at 989-990]
I have replicated this passage, not to cause the reader’s eyes to glaze or because of my inability to summarise it. Rather it represents a considered analysis by the House of Lords pointing to a line of cases being based on a faulty premise.
[30] The comment (supra) that the differently worded but substantively identical English Magistrate’s Court Rule was “plainly designed” to prevent informations being duplicitous, accords precisely with my observations [supra [19]] on the wording of s 16.
[31] More recently Chambers J in Gilroy v Police (HC AK A166/01, 30 May
2003) rejected the submission that the District Court had no jurisdiction to hear more than one information in the absence of a defendant’s consent. He stated (at [38]) that Police v N was correct. This was without addressing the effect of the House of Lord’s refusal to apply the Divisional Court judgment of Edwards v Jones on the reasoning in Ministry of Transport v Maud, Collector of Customs v Woolley and Hodges v Police.
[32] For the reasons I have stated, I have reached the same conclusion.
Result
[33] I do not consider the Judge exceeded his jurisdiction in declining the plaintiff’s adjournment application on 23 January 2007. Nor, for the reasons I have stated, do I consider that the Judge erred jurisdictionally in his refusal to accept an argument that the District Court had no jurisdiction to hear, without the plaintiff’s consent, the six informations together.
[34] It seems to me, reading between the lines of the Judge’s decision, that the plaintiff was riding two horses in a somewhat clumsy fashion. What was really sought was another adjournment. No argument was advanced as to why the interests of justice might require two hearings for separate groups of informations. Counsel instead advanced a jurisdictional issue which was not in fact a jurisdictional issue at all but was, at best, a rule of practice.
[35] I, furthermore, do not consider the Judge was unreasonable or had pre- determined either the arguments or the adjournment application by “closing down” counsel in a peremptory fashion. His assessment of the jurisdictional argument was
correct. And, importantly, he still left open a final decision on the adjournment to the presiding Judge the next day.
[36] I further comment that if there are compelling reasons to sever off one set of informations from the other, a proper basis will need to be established well before a hearing date is allocated in the Auckland District Court.
[37] The plaintiff’s application for judicial review is dismissed.
Costs
[38] The plaintiff is not on Legal Aid. Mr Powell, although accepting costs on the Category 2 Band B level should normally apply, acknowledged that there may be some public value in having the s 16 jurisdictional issue clarified by this Court. Nonetheless the plaintiff has failed to get his remedy.
[39] My tentative view is that an arbitrary global figure of $2,000 should perhaps be ordered against the plaintiff. I invite counsel to file short memoranda on that issue. I further direct counsel for the second respondent is first to state whether he seeks costs at that level, some other level, or not at all.
…………………….
Priestley J
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