Osborne v Police - [2024] NZHC 1202

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-020

[2024] NZHC 1202

BETWEEN
ROBERT MALCOM DENDY OSBORNE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 May 2025

Appearances:

Appellant in person

M A Shaw for Respondent

Judgment:

15 May 2024

JUDGMENT OF GRAU J

[Appeal against dismissal of appeal at District Court]

Introduction

[1] Police issued Mr Osborne with an infringement notice for using a cellphone while driving on 22 March 2022.1 Mr Osborne challenged the infringement notice. After a hearing on 9 November 2022 in the Porirua District Court, two Justices of the Peace (JPs) found the charge was proven. Mr Osborne received a fine of $150 and was ordered to pay court costs of $130.2

[2] Mr Osborne appealed the JPs’ decision. Following a series of adjournments, Mr Osborne’s appeal was set down to be heard before Judge Mill in the Porirua District

1 Land Transport Act 1998, s 40; Land Transport (Offences and Penalties) Regulations 1999, r 4; and Land Transport (Road User) Rule 2004, r 7.3A(1) (maximum penalty $1,000 fine).
2 Police v Osborne DC Porirua CRI-2022-091-881, 9 November 2022 (Oral Judgment of the Justices of the Peace P Gordon and E Kalafetellis).

OSBORNE v NEW ZEALAND POLICE [2024] NZHC 1202 [15 May 2024]

Court on 23 February 2024. Mr Osborne, who is self-represented, did not appear.
Judge Mill dismissed the appeal “through lack of prosecution”.3

[3] Mr Osborne now appeals Judge Mills’ decision to dismiss his appeal. He says he did not appear on 23 February 2024 because he was awaiting an urgent appointment with a neurological assessment team, having had a suspected stroke on 21 February 2024.

[4] Mr Osborne has provided the Court with a copy of the email he sent to the Porirua District Court along with a record of his visit to the Kenepuru Accident and Emergency Department on 21 February, where he presented with what is recorded as “probable TIA” (a stroke). The record includes a plan to refer him to the TIA clinic, with the aim for him to be seen within 48 hours. At the hearing Mr Osborne also handed up a record of that follow up appointment which took place on 27 February 2024.4

[5] The Police say that Judge Mill was correct to dismiss Mr Osborne’s appeal when Mr Osborne had repeatedly failed to appear to advance his appeal, and when Judge Mill had already recently declined Mr Osborne’s latest request for an adjournment on the basis of his health.

[6] Given this is a second appeal against conviction, Mr Osborne needs leave to appeal.5 His leave application is to be determined with his substantive appeal.

Leave to appeal and second appeal against conviction

[7] Leave is required to commence a second appeal against conviction. The High Court cannot give leave for a second appeal unless it is satisfied that either the appeal involves a matter of general or public importance, or a miscarriage of justice…

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.

Keep reading for free

Create a free CaseChat account to read Osborne v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 1202
Decision Date: 15 May 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Grau J considered an appeal by Robert Malcom Denys Osborne against the dismissal of his appeal by Judge Mill in the Porirua District Court. Mr Osborne was fined for using a cellphone while driving, a decision which he appealed. His appeal was dismissed due to his failure to appear in court on multiple occasions. Mr Osborne argued that his absence was due to a medical emergency, specifically a suspected stroke. The High Court examined whether the District Court judge had the necessary information about Mr Osborne's health condition when dismissing the appeal. The Court found that it was reasonable to grant some leeway given Mr Osborne's medical situation and the fact that he was self-represented. Additionally, the Court noted that the evidence provided by Mr Osborne appeared to have merit, supporting his argument that the police could not have seen him using his phone.

The central legal issue in this case was whether the District Court judge had the authority to dismiss Mr Osborne's appeal for lack of prosecution, considering the appellant's medical condition. The High Court held that while there is a statutory and inherent power to dismiss an appeal for non-compliance, this power should be exercised with consideration for circumstances beyond the appellant's control, such as a medical emergency. The Court concluded that the District Court judge did not have the relevant medical information at the time of the dismissal and that Mr Osborne's failure to appear was reasonably justified. Consequently, the Court granted Mr Osborne leave to bring a second appeal and allowed his appeal against the District Court's decision. The case is to be remitted back to the District Court for a re-hearing of the appeal.

Orders