Okeby v The Queen - [2010] NZCA 519

IN THE COURT OF APPEAL OF NEW ZEALAND
CA528/2010
[2010] NZCA 519
BETWEENSTEPHEN RINHOLD OKEBY

Applicant

ANDTHE QUEEN

Respondent

Hearing:4 November 2010

Court:Randerson, Potter and Cooper JJ
Counsel:W M Johnson for Applicant

J M Jelas for Respondent

Judgment:17 November 2010 at 2.30 p.m.

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
___________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1]        Mr Okeby seeks leave to appeal a pre-trial ruling given by Judge Barry on 11 August 2010.[1] Mr Okeby is charged under s 56(2) of the Land Transport Act 1998 with driving with excess alcohol on 27 March 2009, having been convicted at least twice previously for similar offences. The issue Mr Okeby seeks to argue relates to the manner in which the prosecution may prove the previous convictions.
[1]      R v Okeby DC Wellington CRI 2009-091-1836, 11 August 2010.
[2]        Initially, the prosecution indicated at a pre-trial hearing that it would rely on s 71(3) of the Summary Proceedings Act 1957 to tender proof by Registrar’s Certificate of the details of the previous convictions. The prosecution gave notice under s 130 of the Evidence Act 2006 that it intended to produce the s 71(3) certificates without calling a witness. Counsel for Mr Okeby objected to this proposal stating that he wished to cross-examine the signatories to the certificates.
[3]        The Crown then decided it would proceed by the alternative process of producing a Registrar’s Certificate under s 139 of the Evidence Act 2006, again without calling a witness. Copies of the certificates signed by a Deputy Registrar of the relevant District Courts were provided. Mr Okeby objected to the admissibility of the s 139 certificates as well.
[4]        The Crown responded by filing an application under s 344A of the Crimes Act 1961 for an order that the certificates under s 139 of the Evidence Act were admissible to prove the prior convictions.
The issues
[5]        The issues raised before Judge Barry and which Mr Okeby seeks to pursue on appeal are essentially these:
(a)Whether certificates under s 139 of the Evidence Act may be invalid for non-compliance with s 71 of the Summary Proceedings Act.
(b)Whether a certificate under s 139 is conclusive proof of the facts stated therein.
(c)Whether there is proper proof that the Deputy Registrar signing the s 139 certificates is the person having custody of the relevant court records.
(d)Whether Mr Okeby will be unfairly prejudiced if the relevant court officers are not called by the Crown for cross-examination as to the accuracy of the material in the certificates.

The relevant statutory provisions
[6]        Section 71 of the Summary Proceedings Act 1957 relevantly provides:
71          Criminal Records
(1)         The Registrar of each Court appointed for the exercise of criminal jurisdiction shall keep Criminal Records in the prescribed form, in which shall be entered a minute or memorandum of all proceedings in the Court under its criminal jurisdiction. Every such minute or memorandum shall be signed by the District…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Okeby v The Queen

Details

AGLC: Okeby v The Queen [2010] NZCA 519
Case: [2010] NZCA 519
Decision Date: 17 November 2010

CaseChat Overview and Summary

The applicant, Stephen Rinhold Okeby, sought leave to appeal a ruling by Judge Barry that the Crown could rely on certificates under s 139 of the Evidence Act 2006 to prove the applicant's previous convictions, without calling witnesses. The applicant argued that the certificates were invalid, the certificate was conclusive proof, the Deputy Registrar did not have custody of the court records, and he would be unfairly prejudiced by not being able to cross-examine the witnesses. The central issues were whether the certificates complied with the requirements of s 71 of the Summary Proceedings Act 1957, whether a certificate under s 139 was conclusive proof of the facts stated, whether there was proper proof that the Deputy Registrar was the person having custody of the relevant court records, and whether the applicant would be unfairly prejudiced if the relevant court officers were not called by the Crown for cross-examination.

The Court found that the certificates complied with s 139 of the Evidence Act and did not need to contain all the particulars required by s 71 of the Summary Proceedings Act. The expression "sufficient evidence" in s 139(2) did not mean the certificate was conclusive proof of the facts stated, as it would be unjust to deprive the accused of the opportunity to call evidence to demonstrate that the certificate was in error. The Deputy Registrar's status as a person having custody of the relevant court records was not required to be proved, as the relevant District Court Registrar had custody by virtue of s 71(1) of the Summary Proceedings Act. The applicant was not unfairly prejudiced if the relevant court officers were not called by the Crown for cross-examination, as it was open for him to call evidence to dispute the accuracy of the certificates.

The Court concluded that the applicant's grounds for appeal had no prospect of success and dismissed the application for leave to appeal. The Court noted that the courts would be unsympathetic to the raising of technical, trivial, or unmeritorious points and that there was no obligation on the prosecution to call the relevant witnesses unless the interests of justice required.

Orders