O v Police HC Auckland CRI 2005-404-362

[2006] NZHC 428

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-362

O

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 April 2006

Appearances: I Sapolu for appellant

A Longdill for respondent

Judgment:      27 April 2006

JUDGMENT OF ALLAN J

Solicitors:

I Sapolu, PO Box 75420, Manurewa

Crown Solicitor, Auckland

O V POLICE HC AK CRI 2005-404-362  27 April 2006

[1]      The appellant appeals against conviction on one charge of assault, following her entry of a guilty plea at the first call of the matter in the Manukau District Court on 21 April 2005.   At the conclusion of the hearing I indicated that I would allow the appeal and that these brief reasons would follow.

[2]      The circumstances are unusual but may be briefly explained.   The charge arises from an incident in which the appellant became involved in an altercation with the driver of a stationary vehicle.  The police case was that the appellant threw three punches at the driver through the open driver’s window.   One of those punches struck the victim in the ribs.  The others were fended off by the victim’s raised arm.

[3]      The appellant was a first offender.  When she arrived at Court she was seen by a Duty Solicitor, and was noted as being eligible for diversion.  In consequence she was provided with a diversion notice which required her to attend an interview at

9 am on 29 April 2005, that is some eight days after her first Court appearance.  The form indicated that her next Court date would be 3 June 2005.

[4]      Somehow, lines of communication between the police, the Duty Solicitor and the Court miscarried.   When the appellant’s case was called later in the day, the presiding Judge asked the Duty Solicitor who was in Court (not the solicitor who had initially interviewed the appellant), whether the appellant was eligible for diversion. The Judge was advised that diversion was not available.  He thereupon proceeded to deal with the matter in a summary fashion by convicting the appellant and fining her

$250 with Court costs of $130.

[5]      The  appellant  had  understood  she  was  being  processed  as  eligible  for diversion.  No doubt she was taken completely by surprise when on her appearance in  Court  (it  was  a  relatively  short  hearing,  covering  no  more  than  a  page  of transcript), she was convicted and fined.

[6]      Plainly, justice has miscarried in this case.    Ms  Longdill  for  the Crown accepts that this appeal ought to be allowed.

[7]      In all the circumstances the appeal is allowed and the appellant’s conviction is quashed.   The matter is remitted to the Manukau District Court for rehearing, pursuant to s 131 of the Summary Proceedings Act 1957.

[8]      I note that some weeks after the events of 21 April 2005, the appellant appeared in Court again to face another relatively minor charge.  That circumstance has no effect on the appellant’s eligibility for diversion.   She is to be treated on rehearing as if she were appearing in Court for the first time;  that is, in the light of the circumstances as they were as at 21 April 2005.

C J Allan J