Peka v Police

[2019] NZHC 2128

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-26

[2019] NZHC 2128

LARS MARLON PEKA

v

NEW ZEALAND POLICE

Hearing (via AVL):	27 August 2019
Counsel:	W R Hawkins for Appellant M M Mitchell for Respondent
Judgment:	28 August 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 15 July 2019, the appellant, Mr Peka, was convicted and sentenced by Judge Adeane in the Napier District Court to six months’ community detention following a Judge-alone trial on four charges of failing to comply with reporting obligations arising from his registration on the Child Sex Offender Register (the Register).1

[2]    He appeals against this conviction on the ground that the Judge erred by ruling that the notice of reporting obligations on the Register was valid and, therefore, a miscarriage of justice has occurred. It is contended that the notice was invalid as it

1      New Zealand Police v Peka [2019] NZDC 14389; Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 39: maximum penalty one year’s imprisonment and a $2000 fine.

PEKA v NEW ZEALAND POLICE [2019] NZHC 2128 [28 August 2019]

was not accompanied by an instrument of delegation from the Chief Executive of the Department of Corrections (the Chief Executive).

[3]    The respondent’s position is that no such document was required to accompany the notice and, therefore, it was valid. Alternatively, it is submitted that even if the notice was invalid, provided the contents of the notice have unequivocally been brought to the attention of the defendant, he is obliged to comply with it and any invalidity does not absolve the defendant of his obligation to comply.

Background

[4]    Mr Peka has been on the Register since December 2018 and, as such, was required to report the address of each of the premises at which he generally resided and, if he did not generally reside at any particular premises, the name of each of the localities in which he could generally be found. This information was required to be reported 48 hours prior to any changes.

[5]    He was also required to report the details of any telecommunication services used, including the phone number and service provider, providing such information within 72 hours of any change.

[6]    On 26 January 2019, Mr Peka advised that he had been asked to leave his approved address but had been given time to find another suitable address. The Police reminded him at this time of his obligation to report any changes to his residential address 48 hours prior to any change. Mr Peka also said that he did not have a cellphone but intended speaking with Work and Income New Zealand later that day in an effort to get a phone.

[7]    On 19 February 2019, Police completed a home visit and were advised that Mr Peka had moved out around 4 February 2019. Enquiries revealed that he had since travelled to Mahia, Wairoa and Flaxmere. Further enquiries showed that Mr Peka had also been using at least three different cellphone numbers. He had not attempted to report any of these changes, nor had he reported his use since December 2018 of Facebook messenger to communicate with people.

District Court decision

[8]    The Judge had to rule whether the service of notice of Mr Peka’s reporting obligations required the exercise of functions or powers of the Chief Executive which have not been validly delegated. He accepted the Police submission that this was not an executive power or function requiring proof of valid delegation, but was:2

… purely a machinery act giving effect to the provisions of the Child Protection Act which, rightly or wrongly, have clear retrospective effect and which in themselves entirely define the status of the defendant and his obligations thereafter.

[9]He concluded:

[3] The finding I reach on this point is that this is not a situation where formal delegation needs to be established simply production of the notice which has in fact been served. My full reasons for this decision will be delivered in due course if called for and address the other submissions made by the defendant, including a submission that the retrospective effect of the Child Protection Act which is clear in terms of that legislation is somehow affected by the New Zealand Bill of Rights Act 1990 and its distaste for retrospective legislation. In my view that aspect, which is also relied on by counsel is conclusively disposed of by s 4 of the New Zealand Bill of Rights Act.

Approach to appeal

[10]   This appeal is brought under s 232(2)(b) and (c) of the Criminal Procedure Act 2011 which provides that an appeal must be allowed if the Court is satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any reason. Such an appeal proceeds by way of rehearing.

[11]   A “miscarriage of justice” is defined as meaning any error, irregularity, or occurrence in or in relation to or affecting the trial that:3

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

2      New Zealand Police v Peka, above n 1, at [2].

3      Criminal Procedure Act 2011, s 232(4).

Discussion

[12]   As Mr Peka was convicted of a qualifying offence and was serving that sentence as a prisoner on 14 October 2016, the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act) applies retrospectively to him.4 Schedule 1, cl 2 of the Act relevantly provides:

2        Notices to be given

(1)As soon as practicable after 14 October 2016, the chief executive of the Department of Corrections must cause written notice to be given to every registrable offender referred to in clause 1(1)(a) of—

(a)the offender’s reporting obligations; and

(b)the penalties for failing to comply with those obligations.

[13]   Counsel for the appellant, Mr Hawkins, submits that it is a power or function of the Chief Executive to serve the notice in question, and it was necessary for an instrument of delegation for the notice to be valid. It is submitted that it was incumbent on the Chief Executive to delegate the function to serve the notice to an employee to act on her behalf.5

[14]   Mr Hawkins’ submission that it is a power or function of the Chief Executive to cause written notice to be given under the Act is based on the Supreme Court decision of Re Solicitor-General’s Reference (No 1 of 2016) which analysed the application of s 90 of the Land Transport Act 1998.6 That case concerned two appellants who challenged the validity of the notice of suspension that was served on them by the Police rather than the New Zealand Transport Agency (NZTA). One of the indirect issues that arose was whether the notices of suspension could be cured of any invalidity if the Director of the NZTA delegated his or her authority to any Police officer to serve the notice of suspension on his or her behalf. On this issue, Williams J in the High Court held:7

4      Child Protection (Child Sex Offender Government Agency Registration) Act, sch 1, cl 1.

5      The prerogative for the Chief Executive to do so is set out in s 41 of the State Services Act 1988 and s 73 of the Crown Entities Act 2004.

6      Re Solicitor-General’s Reference (No 1 of 2016) [2017] NZSC 58, [2018] 1 NZLR 147.

7      Police v Haunui [2015] NZHC 2456 at [36].

Of course the Constables could have given notice of all these matters if there had been a valid delegation of that function, but, as I have said, it is common ground that there had not.

[15]   The Court of Appeal held that the NZTA had the power to delegate its function to serve a notice of suspension to the Police:8

… the Agency has always had the ability to delegate the duty to give notice. Originally by s 205 of the [Land Transport Act 1998], although that was repealed in 2008. More latterly the power to delegate is vested in ss 73 and 74 of the Crown Entities Act.

[16]   While the Police submitted in the District Court that the requirement to cause written notice to be given does not fall within the scope of a statutory power and is purely an administrative function, Mr Hawkins submits that the Supreme Court in  Re Solicitor-General’s Reference (No 1 of 2016) addresses this issue as follows:9

[19]  Section 210 therefore made it clear that the Director might  “cause”   the notice to be delivered as well as giving notice directly. When the Director gave the notice directly he was not of course required to act personally in the delivery: the provisions of the State Sector Act 1988 and the common law make it clear that designated officials can act through departmental officers. The additional authority to “cause” delivery to be made in one of the ways envisaged by s 210 (whether by personal service, post, or leaving the notice at an address) is authority to authorise service by non-departmental officials.

[17]   By virtue of this obiter dictum, Mr Hawkins submits that the delivery or “cause” of notice is the exercise of a statutory power or function of the Chief Executive. As it is accepted that she has not delegated her authority to any employee of the Department of Corrections, it is therefore submitted that the notice served on Mr Peka is invalid. The Judge, in finding otherwise, is said to have made a significant error that had a material effect on the trial, leading to a miscarriage of justice.

[18]   The respondent, however, submits that a plain reading of cl 2 establishes that the relevant notice is not required to be given by the Chief Executive herself, rather that she must simply cause the offender to be given such. On such a reading, it is said to be irrelevant whether the notice was provided by the Chief Executive or by an employee of the Department of Corrections, provided that the Chief Executive has facilitated the provision of such.

8      Re Solicitor-General’s Reference (No 1 of 2016) [2016] NZCA 417, [2017] 2 NZLR 1 at [29].

9      Citation omitted.

[19]   It is noted that, in contrast, other legislative provisions impose obligations on the Chief Executive personally. Section 107F of the Parole Act 2002, for example, provides that “[t]he chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender”. It is contended that the specific third-person address requires that an application of this kind may only be made by the Chief Executive herself, or by an employee of the Department of Corrections who possesses the relevant delegation under s 41 of the State Sector Act 1988.

[20]   The respondent submits that this contrast in drafting reflects a Parliamentary intention that the Chief Executive’s role with respect to the notice requirements attendant to registration on the Register be purely administrative. That is consistent with the fact that provision of such notice requires no exercise of discretion, no imposition of additional burdens on third parties, no investigative processes, and is otherwise an essentially secretarial task. It is submitted that this may readily be contrasted with provisions such as the power to apply for extended supervision orders, where a high degree of discretionary decision-making (with significant attendant consequences for the subject) is involved.

Analysis

[21]   I accept the respondent’s submissions on this point. A plain reading of the clause would indicate that the Chief Executive was required to ensure that a procedure was in place whereby offenders placed on the Register were to be informed of their reporting obligations. The wording of the clause is “must cause written notice to be given” rather than “must give written notice”, which suggests that the act of giving notice is to be carried out by someone other than the Chief Executive and does not require formal delegation. That giving of notice is an administrative requirement, rather than the exercise of a statutory power or function. Re Solicitor-General’s Reference (No 1 of 2016) does not provide assistance, as it deals with different provisions made under another Act.

[22]   Mr Peka was informed of his reporting obligation and the penalties for failing to comply with those obligations in writing when he was placed on the Register, and was reminded, at least of the residence reporting obligation, by Police on 26 January

2019. The written notice that was served on him was not invalid and the District Court Judge made no error in finding that the Act was one of a “machinery” nature which did not require the Chief Executive to formally delegate her authority to employees of the Department of Corrections. There having been no error, there has accordingly been no miscarriage of justice.

Result

[23]Accordingly, for the reasons given above, this appeal is dismissed.

Churchman J

Solicitors:

Bramwell Bate, Hastings for Appellant Crown Solicitor, Napier for Respondent