Paice v Police - [2018] NZHC 1548

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-195

[2018] NZHC 1548

BETWEEN
KARL JOSEPH PAICE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 June 2018

Appearances:

Appellant in person

P C Murray for Respondent

Judgment:

26 June 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 26 June 2018 at 4.15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

PAICE v POLICE [2018] NZHC 1548 [26 June 2018]

[1] Karl Paice, who is self-represented, has filed a notice of general appeal against a decision made by Judge Winter in the Papakura District on 30 May 2018 granting leave to the police to withdraw a charge brought against Mr Paice of driving whilst his driver’s licence was suspended.1

[2] The charging document filed in the District Court at Kaikoura on 25 December 2017 alleged that on 23 December 2017, Mr Paice drove a motor vehicle on State Highway 1 at Kaikoura whilst his driver’s licence was suspended, he having been convicted at least twice previously of an offence against s 32(1) of the Land Transport Act 1998.

[3] On 2 March 2018 Judge MacAskill transferred the proceeding from the Kaikoura District Court to the Papakura District Court for a Judge-alone trial, noting that the only issue was whether the defendant had been served with a suspension notice which was said by the prosecution to have been effected in Papakura.

[4] Mr Paice appeared before Judge McGuire in the Papakura District Court on 12 April 2018. The Judge noted that Mr Paice contended that he had not been served with the suspension notice, and that at the time he was said to have been served he was in fact in Nelson. The matter was further adjourned to 30 May 2018 to enable Mr Paice to obtain a sworn statement from a witness and to provide information to the prosecutor relating to his dispute over service of the suspension order.

[5] When the matter was called in the Papakura District Court on 30 May 2018, Mr Paice did not attend. The police prosecutor applied for leave to withdraw the charge of driving while suspended, and Judge Winter granted leave.

[6]The grounds of appeal relied upon by Mr Paice read:

I by mistake missed hearing but still want my day in court as the suspension that was never served was acted upon. This has created a number of events, charges and costs as well as putting a life [at] risk. The only way that this can be resolved is in front of a judge and the wrongs and lies be exposed.

1 Land Transport Act 1998, ss 32(1)(c) and 32(4).

[7] Mr Paice appeared in person at the hearing before me but apart from confirming the background circumstances as set out above, did not make any further submissions.

[8] For the respondent Mr Murray submits that there is no general right…

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.

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Details

Case: [2018] NZHC 1548
Decision Date: 26 June 2018

CaseChat Overview and Summary

Karl Paice, self-represented, appealed a decision of Judge Winter in the Papakura District Court, who granted leave to the police to withdraw a charge against Mr Paice of driving while his driver's licence was suspended. The police prosecutor applied for leave to withdraw the charge, which was granted by Judge Winter. The grounds of appeal raised by Mr Paice were that he missed the hearing by mistake, but still wanted his day in court, as the suspension that was never served was acted upon, resulting in a number of events, charges, and costs, as well as putting a life at risk. The court considered the legal issues involved, including whether there was a general right of appeal against a decision to grant leave to withdraw a charge, and whether there was jurisdiction to appeal on a question of law under s 296 of the Criminal Procedure Act 2011. The court found that there was no general right of appeal against a decision granting leave for the withdrawal of a charge pursuant to s 146 of the Act, and the only potential avenue of appeal was under s 296 of the Act, which requires that the question of law must arise in proceedings that relate to or follow the determination of the charge or in the determination of the charge. The court concluded that there was no jurisdiction to hear the appeal as the granting of leave to withdraw the charge did not determine the charge or occur in proceedings related to or following the determination of the charge, as s 296(3) requires. The appeal was dismissed.

Orders