McKee v Wellington City Council HC Wellington CRI-2011-485-52

[2011] NZHC 1184

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-52

DUNCAN RICHMOND MCKEE

Appellant

v

WELLINGTON CITY COUNCIL

Respondent

Hearing:         4 October 2011

Appearances: Appellant in person

A M White for Respondent

Judgment:      4 October 2011

ORAL JUDGMENT OF MACKENZIE J

[1]      Mr McKee appeals against his conviction in the District Court at Wellington on two infringement offences;  one of operating a motor vehicle without a current warrant of fitness, and the other of operating the same vehicle without a current registration.

[2]      It  is  necessary  to  describe  the  procedural  history  as  it  is  set  out  in Mr McKee’s very full and comprehensive written submissions.   The infringement notices  were  issued  on  26 May 2010.    On  5 July  a  notice  of  what  Mr McKee describes as a notice of fine in respect of those infringement notices was issued.  It appears that he requested that the matter be taken to the Court and on 23 July he received a response from the Wellington City Council, the informant, and on 24 July

was advised of a hearing date of 15 October 2010.

MCKEE V WELLINGTON CITY COUNCIL HC WN CRI-2011-485-52 4 October 2011

[3]      Mr McKee  made  arrangements  with  the  informant  for  the  matter  to  be adjourned and that was agreed.   Unfortunately, due to an error on the part of the Wellington City Council officer involved, this was apparently not actioned and the matter  proceeded  as  an  undefended  matter  in  the  absence  of  the  appellant  on

26 November 2010.    Mr McKee  applied  for  a  rehearing.    The  Wellington  City Council official acknowledged his error in relation to the earlier request  for an adjournment and in the light of that the fine and costs were set aside.

[4]      The appellant was advised of that in a notice to defendant of rehearing date, dated 2 March 2011, which noted that the rehearing had been granted and the fine and costs had been set aside and said “you are required to attend the Court hearing personally at the Wellington District Court on 27 May 2011 at 10am to enter a plea”.

[5]      On 27 May 2010 the appellant attended at the Wellington District Court.  The matter was being heard before two Justices of the Peace.  The record of the hearing before them shows that what occurs was that at what was apparently a call over at

10am, the appellant was asked by the Court was it still his intention to defend the matter today and advised that it was.  He was then asked to wait either in the Court or outside the Court.  He informs me that he waited outside and was called back in at about 1 o’clock.  The notes record that at that stage the Court advised that it was going to have to look at putting off a number of cases because of the time that had been taken by the morning’s business and one of those was Mr McKee’s.  Mr McKee indicated that there had been some delay and he had gone to Court specially and was not inclined to agree to an adjournment.  The Court, after hearing from Mr McKee and from the prosecutor, said to Mr McKee “I’m sorry we won't be able to hear you today”.  At that stage Mr McKee indicated that he was going to say an adjournment to a later date would suit him.   There was then a discussion of some dates.   The prosecutor suggested some available dates and the final record is of Mr McKee acknowledging one of those suggested dates;  8 July.  The Court then adjourned at

1.09pm.

[6]      Sometime after the lunch adjournment Mr McKee, who was still in the Court building, heard his name being called and he went into Court and the matter proceeded.  The first record in the notes is of the prosecutor opening the case and

then calling his witness, who was cross-examined by Mr McKee. At the close of the informant’s case, the Court said to Mr McKee “this is your opportunity to come into the witness box and give your evidence”.   Mr McKee was then sworn and gave evidence and was cross-examined.   He then made some brief submissions at the close of his evidence.

[7]      In support of his appeal Mr McKee submits that his right to justice, as set out in s 27(1) of the New Zealand Bill of Rights Act 1990, has been breached.   That there has been a lack of due process as required by s 24(d) of that Act and that the minimum standards of criminal procedure protected by s 25(f) of that Act were breached.

[8]      In the light of that history, as I have recorded it, I think there are proper grounds for concern as to the procedure which was adopted.  The letter that was sent did indicate that the purpose of the attendance was to enter a plea.  That would quite reasonably be understood by a lay litigant as meaning just that:  that the purpose of the hearing was to enter a plea and no further, and that if the plea were not guilty then there would have to be a defended hearing.

[9]      What occurred on the day of the hearing seems to have compounded the issue.  Without being in way critical of the way in which this was conducted by the Justices of the Peace, who were doing their best to deal with a busy list Court, it does seem from reading the transcript that the impression given at the conclusion of the hearing, just after 1pm, was that the matter would be adjourned.  The Court had said quite unequivocally “I’m sorry we won't be able to hear you today” and the last recorded exchange there was of dates of resumption for the matter.  At that point, as Mr McKee points out in his submissions, he had still not been asked to enter a formal plea.   It was, as Mr McKee submits, by chance, that he was still in Court when the matter was called.

[10]     Mr McKee indicates that he did have an intention to call a witness from the service station where he had taken his vehicle for work to be done so that a warrant could be obtained.  He did not make that clear to the Justices and it is understandable that they should have proceeded on the basis that he did not have further evidence.

However,  in  the  circumstances,  it  would  not  be  surprising  that  Mr McKee  was somewhat thrown by the turn of events.  I consider that he cannot be taken to have agreed to the matter proceeding in the way that it did.

[11]     For those reasons I think that the process has miscarried and the result must be that the appeal must be allowed and the matter must be remitted for a rehearing on the merits.

“A D MacKenzie J”

Solicitors:         DLA Phillips Fox, Wellington for Respondent

Copy to Mr McKee