Overington v New Zealand Transport Agency HC Auckland CRI-2010-404-000515

[2011] NZHC 1089

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000515

CRI-2011-404-000049

DENNIS GIBSON OVERINGTON

Appellant

v

NEW ZEALAND TRANSPORT AGENCY

Respondent

Hearing:         23 August 2011

Counsel:         Appellant in person

Y Clarisse for Respondent

Judgment:      23 August 2011

JUDGMENT OF ASHER J

Solicitors:

Crown Solicitor, DX CP24063, Auckland 1140. Email:  [email protected]

Copy to:

D Overington, 22 Patey Street, Remuera, Auckland. Email:  [email protected]

OVERINGTON V NEW ZEALAND TRANSPORT AGENCY HC AK CRI-2010-404-000515 23 August 2011

Introduction

[1]      This is an appeal against a judgment of Judge Wade in the District Court at Auckland convicting the appellant, Mr Dennis Overington, of producing a logbook that was false in a material particular and failing or refusing to comply with an audit or inspection requirement.  Mr Overington was fined $1,000 on each charge and his licence was suspended for three months.   Mr Overington appeals against both his conviction and sentence.

[2]      Mr Overington has acted for himself.  The points on appeal are therefore not drafted as a lawyer would draft them and there have been no points on appeal filed.

[3]      The hearing took place on two days, 25 August and 6 December 2010.  The notes of evidence from the first day are available, but the notes of evidence from the second are not.  The electronic transcript has gone missing and, I am informed by the Crown, appears to be irrecoverable.

[4]      Mr Overington wishes to proceed with the appeal but says he cannot do so without the notes of evidence.  The notices of appeal are not specific to matters in the evidence, save for para 2 of the appeal against the audit conviction which reads: “Verdict against the evidence.  There were no documents in the appellant’s name to provide to the agency.”  It has been made clear by Mr Overington that he wishes to develop that submission into an argument that the Judge could not, or should not, have  reached  the  adverse  credibility  findings  against  him  that  feature  in  the judgment.

[5]      Mr  Overington  submits  that  in  the  absence  of  that  evidence  he  cannot properly proceed.  Ms Clarisse for the Crown while asking the Court to consider the option of proceeding in any event, has fairly not suggested that Mr Overington is able to proceed with a general evidence challenge, given the absence of part of the notes of evidence.

[6]      While the Crown would very much like this matter to proceed today, I must conclude  with  great  regret  that  in  the  circumstances  it  would  not  be  fair  to

Mr Overington to do so.  There may be material in the notes of evidence on which he wishes to rely, and which indeed is relevant to the appeal.  While there may be force in Ms Clarisse’s submission that the notes of evidence provide no support for his appeal, that is not a matter I can fairly rule on at this point.

[7]      Therefore, with regret I will allow the appeal and remit the matter back to the

District Court for a rehearing.

Result

[8]      The appeal is allowed.   The convictions are set aside and the sentence is quashed.  The proceedings are to be returned to the District Court for a rehearing.  I ask that every effort be made to ensure that the electronic copies of the notes of evidence at the next hearing are preserved.

[9]      I direct a copy of this judgment be given to the Registrar of the District Court at Auckland.   I would be grateful if a short memorandum could be filed by the Registrar  explaining  how  it  came  about  that  the  notes  of  evidence  for  the

6 December 2010 fixture were lost.

……………………………..

Asher J