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 may have or may occur unless the appeal is heard.6

3      Police v Osborne [2024] NZDC 6180.

4      Mr Osborne was given leave to file a medical certificate confirming his indisposition for the hearing; Osborne v Police HC Wellington CRI-2024-485-020, 10 April 2024 (Minute of Grice J: Appeal review and timetabling).

5      Criminal Procedure Act 2011 (CPA), s 237.

6      CPA, s 237(2).

[8]    If leave is granted, a second appeal court must allow an appeal where any of the grounds in s 232(2) of the Criminal Procedure Act 2011 (the CPA) are made out.7 In the case of a Judge-alone trial, the Court must allow an appeal under s 232 where the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or, a miscarriage of justice has occurred for any reason. A miscarriage of justice means “any error, irregularity, or occurrence in or in relation to or affecting the trial” that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.8

[9]    Appeals under s 232 are conducted by way of rehearing. But it is for the appellant to show that an error has been made.

Discussion

[10]   In addition to the statutory power under s 338 of the CPA to dismiss an appeal for non-compliance with procedural orders, criminal courts also have an inherent power to dismiss an appeal for want of prosecution. The Police have provided a number of cases that illustrate the dismissal of appeals when an appellant has failed to appear.9

[11]   Although these cases do support the Police position that an appeal may appropriately dismissed for lack of prosecution where an appellant has failed to appear multiple times, they do not consider a failure to appear in the context of a medical issue out of the appellant’s control. Although I have sympathy for the Police when Mr Osborne has failed to appear multiple times, has been warned of the consequences of further failure to appear, and has had his last request for adjournment declined, I do consider that a failure to appear due to a suspected stroke warrants some leeway.

[12]   Mr Osborne has provided proof of his medical issue that led to his non- appearance. He provided that proof to the District Court. The Police have been unable to discover whether Judge Mill had that information when he dismissed the appeal. I

7      CPA, s 240.

8      CPA, s 232(4).

9      Mangu v R [2015] NZCA 151; Speirs v Police [2019] NZHC 641, [2019] 3 NZLR 256; and

France v Police [2020] NZHC 2625.

consider it is quite possible he did not. It is also possible that if the Judge had that information, he may have given Mr Osborne a final chance to advance his appeal instead of dismissing it. I note the Police do not appear to be disputing the medical information. I take the point that Mr Osborne’s advice to the District Court was an announcement that he would not be appearing, rather than a request for an adjournment. But Mr Osborne is self-represented; another matter that warrants some leeway.

[13]   On that basis, it is my view that Mr Osborne’s access to justice should not have been curtailed, due to a failure to appear which seems to be quite reasonably justified and due to no fault of his own.

[14]   I also note that Judge Sygrove had earlier granted Mr Osborne leave to obtain further expert evidence, and Mr Osborne has obtained it. That evidence on its face appears to support Mr Osborne’s argument that the Police would not have been able to see into his car, so they could not have seen him on his phone. Thus, his appeal cannot be said to be lacking any merit.

Result

[15]   I grant Mr Osborne leave to bring a second appeal and I allow Mr Osbourne’s appeal against Judge Mill’s decision.

[16]   Mr Osborne’s appeal is to be remitted back to the District Court for a re-hearing of his appeal. As I explained to Mr Osborne at the hearing, he will need to take care to ensure that he proceeds to advance his appeal to hearing without further delay.

Grau J

Solicitors:

Crown Solicitor, Wellington for Respondent cc:           R M D Osborne