Morgan v Police
[2012] NZHC 3323
•10 December 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000308 [2012] NZHC 3323
RAE MICHELLE MORGAN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 4 December 2012
Counsel: Y Lee for Appellant
B Hamlin for Respondent
Judgment: 10 December 2012
JUDGMENT OF ASHER J
This judgment was delivered by me on Monday, 10 December 2012 at 3pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Y Lee, PO Box 33718, Takapuna, Auckland 0740. Email: [email protected]
Crown Solicitor, DX CP24063, Auckland 1140. Email: [email protected]
MORGAN V NZ POLICE HC AK CRI-2012-404-000308 [10 December 2012]
Introduction
[1] The appellant Rae Morgan wrote to this Court on 1 October 2012 by letter received on 19 October 2012 abandoning her appeal against various convictions in the District Court. She has now changed her mind and wishes to proceed with the appeal. She applies to continue her appeal, notwithstanding the letter of abandonment.
[2] On 9 August 2012 she had been convicted by Judge P W Cooper in the District Court at Auckland of failing to give particulars of her name and address as required by s 9 of the Trespass Act 1990, resisting arrest by a Constable acting in the execution of his duty, intentionally damaging a radio aerial on a Police vehicle, and assaulting a Constable in the execution of her duty.
[3] The charges had arisen out of an incident where she had been asked to leave a hotel on the basis that she was intoxicated and using bad language. She was escorted out of the bar but after stayed in the porch area near the front door, although not inside the bar. This was when she was approached by the Police and the various incidents covered by the charges occurred. Having found her guilty of the charges Judge Cooper sentenced her to 80 hours’ community work and ordered her to pay reparation of $102.57. He noted she had an extensive history of assaults on the Police and obstruction of the Police.
[4] Ms Morgan filed a notice of appeal. However, before the appeal was first called in this Court the notice abandoning appeal was filed.
[5] Ms Morgan has filed an affidavit explaining the circumstances of her sending the letter of abandonment. She had already completed half the community work hours imposed as a penalty for the offending. Due to a house burglary her camera with photographs that were important to her hearing and her appeal had been stolen. She did not want to waste Court time. However, she recorded in the notice of abandonment that a Police officer had lied.
In the District Court and up to the time of filing the notice of abandonment, Ms Morgan had been represented by Mr Lee. She wrote the notice of abandonment letter without consulting him. Mr Lee who appeared in support of the application explained that Ms Morgan has an alcohol problem and was depressed at the time. He asserts that she has mental health issues. He also explained that her cellphone was out of credit at the time when she filed the notice of abandonment and that this was the reason why she did not contact her lawyer.
The issue
[6] Section 129 of the Summary Proceedings Act 1957 provides:
129 Abandonment of appeal
An appellant may at any time after he has given notice of appeal, or after he has applied for extension of time for such a notice, abandon his appeal by giving the Registrar of the High Court and the respondent notice to that effect in the prescribed form, and upon the giving of the notice the appeal shall, subject to the right of the respondent to apply for an order as to costs, be deemed to have been dismissed by the High Court for non-prosecution.
[7] The prescribed form set out in s 129 is Form 38 of the Summary Proceedings
Regulations 1958. It provides:
Form 38
Notice of abandonment of appeal
To the Registrar, High Court, [specify], and to the respondent
[Full name], appellant v
[Full name], respondent
I, [full name], having on [date] given to the Registrar of the District Court at [place] notice of my intention to appeal to the High Court against [here state determination appealed against] hereby give you notice that I do not intend to prosecute the appeal and that I abandon all further proceedings thereon as from this date.
Dated at: [place, date] Signature:
Witness to signature:
[Address] [Occupation]
[8] Section 204 of the Summary Proceedings Act provides:
204 Proceedings not to be questioned for want of form
No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.
Did the notice of abandonment comply with s 129?
[9] The notice of abandonment of appeal provides that the determination appealed against should be stated and that the signature of the person signing the notice should be witnessed. In fact, the handwritten letter sent by Ms Morgan did neither. It did not state the determination appealed against and her signature was not witnessed. So, on the face of it this was not a notice of abandonment of appeal in the form prescribed.
Is the want of form fatal?
[10] On its face, this is not a notice of abandonment “in the prescribed form” as required by s 129. It is not therefore an effective notice of abandonment. The issue is whether under s 204 the notice of abandonment should be set aside because of this failure of form. Section 204 states that such a failure of form shall not make the notice invalid by reason of a defect or want of form unless the Court “is satisfied that there has been a miscarriage of justice”. So the question is has there been a miscarriage of justice?
Miscarriage of justice
[11] There is no definitive statement as to what is meant by the phrase
“miscarriage of justice”. The Court of Appeal in R v Kestle[1] saw no reason why the
[1] R v Kestle [1973] 2 NZLR 606 (CA) at 609.
phrase should not be given its ordinary and natural meaning. This was said of it in
Police v Thomas:[2]
If a notice considered as a whole is defective, s 204 will apply unless there has been a miscarriage of justice. No doubt s 204 is unavailable if a defect is so serious as to result in what should be stigmatised as a nullity. But nullity or otherwise is apt to be a question of degree: compare Broome v Chenoweth (1946) 73 CLR 583, 601, per Dixon J; New Zealand Institute of Agricultural Science Inc v Ellesmere County [1976] 1 NZLR 630, 636, and the authorities there cited. [I]n practice the questions of miscarriage of justice and nullity will often tend to merge.
[2] Police v Thomas [1977] 1 NZLR 109 (CA) at 121.
[12] I am not inclined to consider the distinction between a miscarriage of justice and a nullity as being of importance in this case. Indeed, I doubt whether the notice of abandonment could be regarded as a nullity in the sense of some failure of form that leaves a jurisdictional hole that cannot be filled. The document is recognisable as a notice signalling abandonment of the appeal.
[13] It is to be noted that s 204 does not state that there can be merely a possibility of a miscarriage of justice. The Court must be satisfied that there has been a miscarriage of justice. Relating this to a notice of abandonment of appeal, a miscarriage of justice must mean that it is unjust for the appeal to be treated as abandoned as a consequence of the filing of the particular notice of abandonment of appeal notwithstanding its defects in form. However, the Court in Kestle did refer to a failure to follow form in relation to an order of committal operating to the
defendant’s “disadvantage”.[3] In the English Court of Appeal decision of R v Ashton[4]
[3] At 609.
[4] R v Ashton [2006] EWCA Crim 794, [2007] 1 WLR 181 at [4].
there was reference to:
... a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the Court must decide whether it is just to allow the proceedings to continue.
[14] I bear in mind that unusually there has been a failure of form on a defendant’s part rather than on the part of the prosecution. In assessing a miscarriage of justice the relevant factors will tend to differ from those that will be applied where the error is by the Crown. The personal situation of a defendant can be relevant in assessing a
miscarriage of justice, where it may not be when it is a Crown body that has made
the error. The right of individuals to appeal first instance convictions is not to be ignored in an assessment of injustice.
[15] The non-compliance with the form was of considerable moment. Little weight can be placed on the failure to refer to the actual charges, although this is perhaps a signal that Ms Morgan was not really thinking through what she was abandoning. The important factor is that her signature was not witnessed. A requirement that a signature be witnessed is a requirement which will lessen the chances of forgery. However, such a requirement also provides some check against persons signing documents where their rights are affected in circumstances that might alarm the prospective witness and prompt the witness to refuse to witness the signature, or endeavour to persuade the person executing the document to pause and think.
[16] I have no doubt that Ms Morgan’s decision was made as a response to a particular emotion she was feeling at the time, rather than as a consequence of detailed rational thought. This is indicated on the face of the document where she refers to the Police officer lying. Her general fragile state is indicated not only in the reported facts of the charges, but also in her long history of convictions. It is also indicated, although not as directly as it might, in her affidavit. She is clearly a person who is on occasions fragile in her mental processes.
[17] On the day when she signed the notice of abandonment she had a lawyer acting for her. It was irrational for her not to consult with him before taking the action she did. The fact that her mobile phone was flat was not a good reason not to do so.
[18] The merits of the appeal are relevant in considering a miscarriage of justice from a defendant’s point of view under s 204. If the appeal seems hopeless a Court may be less inclined to find a miscarriage. The basis of argument in this appeal, namely that in fact Ms Morgan was not a trespasser when on the porch and that the Police were acting unlawfully in endeavouring to remove her, cannot be described as unarguable. There is clearly a basis for submissions along those lines, although it
should not be implied from this that I am making any comment on the real merits. It is enough to say that there is a question to be argued.
[19] The chance to challenge a first instance decision on appeal is important, and I have no doubt that if a person is unfairly deprived of the ability to appeal a decision, then that is a miscarriage of justice. The appeal here is not necessarily hopeless. The detriment to the Crown is not considerable, given that the appeal can be heard without delay. Ms Morgan should have the usual opportunity to challenge her conviction on appeal.
[20] I conclude that it would be a miscarriage of justice if Ms Morgan was not permitted to rely on the defects in her notice of abandonment of appeal. I consider that she would be materially and unfairly disadvantaged in being thereby deprived of her right of appeal. I consider that the notice of abandonment of appeal should be treated as ineffective.
[21] Given my decision that there was no valid notice of abandonment of appeal filed it is not necessary for me to consider the main basis on which the appeal was argued, which was that assuming a notice which in form was a valid notice of abandonment, the abandonment could be treated as withdrawn by the Court on the
basis of the line of authority culminating in Eschbank v Police[5] and R v Palmer.[6] It
was stated in R v Palmer that although it is technically possible to withdraw a notice of abandonment with leave, the grant of leave will be a rare event and the only justification for the grant of leave by a Court is that the notice of abandonment is a nullity. It was stated there:[7]
The test for this is whether the Court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of an applicant did not go with the act of abandonment.
[5] Eschbank v Police (1989) 5 CRNZ 157 (HC).
[6] R v Palmer CA140/04, 16 August 2004.
[7] At [13].
[22] This would have been a more difficult threshold for the appellant to address, but because of the significant errors in form, she is not required to do so.
Result
[23] I therefore declare that the notice of abandonment of appeal dated 1 October
2012 was ineffective. The appeal is still proceeding. It is to be heard as soon as possible.
……………………………..
Asher J
0
1
1