New Zealand Police v Zhang

[2013] NZHC 3565

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-458 [2013] NZHC 3565

BETWEEN  NEW ZEALAND POLICE Appellant

ANDZIXIA ZHANG Respondent

Hearing:                   8 October 2013

Appearances:           R Savage for Appellant

F C Deliu & Z Z Chen for Respondent

Judgment:                23 December 2013

JUDGMENT OF KEANE J

This judgment was delivered by  on 23 December 2013 at 3pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

POLICE v ZIXIA ZHANG [2013] NZHC 3565 [23 December 2013]

[1]      On 29 January 2012 Zixia Zhang had a motor accident as a result of which two informations were sworn in Wellington on 23 February 2012 and laid against him in the District Court, Manukau.  One alleged that he had driven carelessly, the other that he had driven with an excess proportion of alcohol in his blood, 215 milligrams of alcohol per 100 millilitres of blood.  The day of hearing allocated in the informations was 26 April 2012.

[2]      These  informations  were  not  served  on  Mr  Zhang.    The  service  copy remained on the Court file.  When Mr Zhang’s solicitors inquired, a police constable at the Howick police station told them of the day of hearing allocated and said, incorrectly, that if Mr Zhang did not appear on that date he would be arrested.  Mr Zhang and his counsel appeared as required, but under protest of jurisdiction.

[3]      On 18 May 2012 Mr Zhang filed in the District Court a notice of protest to jurisdiction, contending that he had not been served with the informations or been given due notice according to law; that he had protested the Court’s jurisdiction on his first appearance and he maintained that protest.  The informations had still not been served.   Then or later he contended that there had been a breach of s 24(a) NZBORA.

[4]      On 19 October 2012, at the fixture given to the protest, the police contended that because Mr Zhang had appeared on 26 April 2012, he had submitted to the jurisdiction of the Court and there was no need to serve him.   He had not been served. The Judge concluded, however, that the police had been obliged to serve Mr Zhang despite his appearance and that the letter his solicitors had been sent and the traffic offence notice served on him could not suffice to meet his right under s 24(a) NZBORA.  He had, she held, ‘a right to be informed promptly and in detail of the nature and cause of the charge’.   That had not happened.   She dismissed the informations.

[5]      The police appealed that decision by way of case stated on a question of law only and in the case she stated the Judge then expressed her reasons for her decision in this way:

Section 24 of the Summary Proceedings Act 1957 provides that the mode of service should  be  personal  service.    If  the summons  is not served  it is enlarged, and can be enlarged a number of times.

In Ink Media Ltd v Ministry of Health1 and Kane v Police2 summonses were not served and as a result in both cases appeals were allowed because of the failure in that procedure.

Summonses had still not been served on the date of the hearing.

On the basis of the law before me there is a requirement for service of summonses, and that was not met in this case.

Lack of service of summonses amounted to a breach of s 24 of the New

Zealand Bill of Rights Act 1990.

The effect of this breach ... was that the charges must be dismissed.

[6]      The Judge then asked whether she had been wrong in law to hold that:

(a)       the  legal  requirement  of  service  cannot  be  displaced  by  the appearance of the defendant despite not receiving the summons and when the defendant makes a protest to jurisdiction from the outset?

(b)       The lack of service of the summons amounts to a breach of s 24(a) of  the  New  Zealand  Bill  of  Rights Act  1993  when  a  defendant appears despite not receiving the summons?

(c)       If the answer to either question one or two is ‘yes’ then the only

available remedy is dismissal of the charges?

[7]      Before coming to these questions I should add that Mr Zhang attempted by way of an application for judicial review, at least to have the Judge reconsider her case stated.  The police had filed the draft case stated two days outside the 14 day time limit and had failed to serve a copy on him forthwith.   On 5 August 2014

Gilbert J dismissed that application.  The case was for the Judge to settle.  Mr Zhang had no right to be heard.

First question

[8]      There can be no issue that the District Court did have, potentially, from the date the two informations were filed in the Manukau Registry, jurisdiction as to Mr

Zhang’s conduct.  He is a New Zealand resident and was alleged to have committed

1      Ink Media Ltd v Ministry of Health HC Hamilton CRI-2006-419-000067, 22 August 2007.

2      Kane v Police HC Christchurch CRI-2010-409-000053, 2 August 2011.

the two offences in Auckland. The issue was whether the Court had jurisdiction over his person.3

[9]      To contend that the Court did have such jurisdiction from the first call of the case on 24 April 2012, the police contended that the Court’s jurisdiction was derived from the informations laid, that the summons was secondary, and that failure to serve the informations and summonses was answered by Mr Zhang’s appearance, albeit under a protest to jurisdiction.

[10]     In Wyatt v Ministry of Transport4, Tipping J said this:

It is not necessary for there to be a valid summons, nor for a summons to have been served, in order for a Court to exercise its jurisdiction.   It is enough if at the time the case is called the defendant is present to answer.

[11]     In McNeill v Ministry of Transport Tipping J said that a summons:5

... is simply the method by which the suspect is given notice that he is required to attend the Court at a stated time and place.  It is the information

... which the Court is ultimately required to determine

And conversely:

... the summons has no independent life of its own.  It is simply the vehicle by which the suspect is summoned to Court.   Unless there is a valid information before the Court there is nothing for it to determine.

[12]     In Wyatt service had not been proved but the point had not been taken at the first instance hearing and there had in fact been service.  In McNeill the issue was as to the information; a summons had been served.  In other cases on which the police rely, once again, the fact of service was not in issue.

[13]     In Police v Mills6 a deficiency in the summons was held to be of no moment. In  McLeod  v  Police7   the  summons  issued  was  a  nullity  but  the  appellant  had

3      Pawson v Heavylift   Cargo Airlines Pty Ltd HC Auckland CRI-2005-404-278, 22 December

2005.

4      Wyatt v Ministry of Transport HC Auckland AP58/91, 4 June 1991 at [5].

5      McNeill v Ministry of Transport HC Dunedin AP12/92, 2 April 1992 at [4].

6      Police v Mills HC Hamilton CRI-2003-419-43, 2 July 2004.

7      Police v McLeod HC Auckland CRI-2011-404-376, 7 December 2011.

appeared in answer to it and that proved decisive.  In Police v Edwards8  I held the summons was defective, but it had been served; and, I held, the defect could be cured under s 204 of the Summary Proceedings Act 1957.

[14]     None of these cases go directly to the question whether, where a summons has not been served, and an appearance is made but under a protest to jurisdiction, the Court does obtain jurisdiction over the person; and there are two decisions of this Court, on which the Judge referred, which stand in contrast.

[15]     In Ink Media Ltd v Ministry of Health9 Williams J held, where one defendant did not appear, that his convictions had to be set aside.  There was no evidence he had been served with a summons and the convictions could only have been entered if counsel  had  appeared  and  ‘waived  the  strict  requirements  of  service  and  thus justified the order for the hearing to proceed in his absence’.  Williams J remitted the charges to the District Court for rehearing.

[16]     In Kane v Police,10  where the appellant did not appear at the first instance hearing and there had been service, but it suffered from a ‘procedural irregularity’, Whata J set aside the conviction and fine, even though the appellant might well have been ‘game playing’.  He elected not to remit the case to the District Court because, he held, ‘enough Court time and expense has been wasted on this’.

[17]     In this case Mr Zhang did appear on the first call but only under threat of arrest and he expressly took the point that he had not been served and he did not waive the absence of service.  He protested the jurisdiction of the Court over him and on this appeal he now invokes an array of cases not referred to in any of those cited in the District Court.

[18]     In R v Garrett-Pegge & Ors, ex parte Brown 11 a solicitor appeared only with authority  to  protest  the  jurisdiction  on  the  basis  that  the  summons  served  was

8      Police v Edwards [2006] DCR 217.

9 Above, n 1 at [138].

10     Above, n 2.

11     R v Garrett-Pegge & Ors, ex parte Brown [1911] 1 KB 880 at 887.

unsealed.  The defendant was present as a spectator.  It was held as to the defect in the summons:

This was a defect which might no doubt have been cured if the applicant had appeared and answered the charge ... he might have appeared and waived the objection.  But if a defendant does not waive an objection ... or if he appears and protests against a jurisdiction ... then the defect remains uncured.

On that basis it was held that the Court did not have jurisdiction even though the defendant was present.

[19]     So too in R v Joice; ex parte Tsay Wann Fure12  it was recognised that an appearance only to protest to jurisdiction is to be treated as no more than that.  By appearing to protest the defendant does not submit to the jurisdiction.  The Ink Media decision on which the Judge relied is consistent with these authorities.

[20]     I conclude, therefore, as to the first question, that the Judge was entitled to hold that the absence of service on Mr Zhang was not cured by his appearance with his counsel to protest the Court’s jurisdiction.

Second question

[21]     In issue on the second question is whether the Judge was right to hold that the

police had also acted in breach of Mr Zhang’s right under s 24(a) NZBORA to be

‘informed in detail of the nature and cause of the charge.’

[22]     The police contend that all that Mr Zhang was entitled to under s 24(a) was to be informed of ‘the act or omission alleged and the category of offence which it is said to constitute’.13    Their letter to his solicitors and the traffic offence notice he received from the officer gave him that information.

[23]     As against that, as Whata J held in Kane v Police,14 it is the information laid which sets out precisely what the nature of the charge is and there is a prescriptive

process as to service which is not to be ignored; and as the cases relating to rights

12     R v Joice; ex parte Tsay Wann Fure (1981) CLR 464 at 471.

13     Caie v Attorney-General [2005] NZAR 703 at [115].

under the NZBORA say, where there is an apparent breach of those rights they do need to be vindicated.

[24]     Of concern to the Judge was that, as the date of the hearing before her, the police had elected not to serve Mr Zhang with the informations and they had also failed to comply with their duty of disclosure under s 13 of the Criminal Disclosure Act 2008.  Mr Zhang therefore lacked what he was entitled to as a matter of law on the day of hearing as to the nature and cause of the charges against him.

[25]     I conclude, therefore, that the Judge was entitled to hold that as at the date of the hearing before her the police remained in breach of Mr Zhang’s s 24(a) right.

Third question

[26]     The final question is whether the Judge should nevertheless have allowed the prosecution to proceed but required immediate service of the informations and set in train the duty of disclosure that the police remained under at that date.

[27]     The police contend that she should have remitted the informations.  As she said herself, the principal charge Mr Zhang faced, the excess blood alcohol charge, was serious.  Mr Zhang also knew broadly from the first what charges he faced.  His solicitors had been engaged from the outset and had asked for the informations to be served.

[28]     As against that the police had elected not to serve the informations and had failed to comply with their duty of disclosure; and at the day of hearing, 19 October

2012, in excess of eight months had passed since the informations were sworn and filed.  In Kane v Police15 the Judge had a precedent on which she was entitled to rely. In those circumstances I do not consider that she can be held to have made any error of principle.

Conclusions

[29]     I have held that the Judge was entitled to decide as she did in each of the three ways put in issue by the police in the case on appeal.  Under s 112(a) of the

Summary Proceedings Act 1957 I confirm the Judge’s determination.

P.J. Keane J