Police v Brown

[2013] NZHC 76

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000381 [2013] NZHC 76

BETWEEN  NEW ZEALAND POLICE Appellant

ANDMERVYN JAMES BROWN Respondent

Hearing:         5 February 2013

Appearances: A Longdill for Appellant

No appearance for Respondent

Judgment:      5 February 2013

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            Respondent

NZ POLICE V BROWN HC AK CRI-2012-404-000381 [5 February 2013]

[1]      This is an appeal by the New Zealand Police by way of case stated against the decision of Judge Clapham in the District Court at Papakura to stay the prosecution against the respondent Mervyn James Brown.

Background

[2]      The brief background to the case is as follows.  On 29 July 2011 the police laid an information against Mr Brown charging him under s 56 of the Land Transport Act 1998 of driving with excess breath alcohol as a third or subsequent offence.  The level of alcohol alleged was 764 micrograms of alcohol per litre of breath.   Mr Brown pleaded not guilty.  Ultimately the matter was heard by Judge Clapham on 24

September 2012.  On that day the Judge found the charge had been proved by the police but stayed the prosecution on the grounds of undue administrative delay.

[3]      The respondent first appeared in the Papakura District Court on 30 July 2011. At that time he entered no plea.  He was granted bail to reappear on 18 August.  The respondent appeared in the Court on 18 August and was further remanded until 22

September without plea to arrange legal aid and for disclosure to be completed.  The matter was called on 15 September, apparently by error.   The respondent then appeared on 22 September 2011 and was remanded through to 20 October 2011.

[4]      On 20 October 2011 the respondent entered a not guilty plea.  He was further remanded on bail to a status mention on 24 November 2011.  On that date a fixture date for 25 January 2012 was allocated.  The case could not be heard on 25 January

2012 because there was no Judge available to hear it. A new defended date of 8 May

2012 was allocated.  Because of the number of cases in the list for hearing on 8 May

2012, the respondent’s case was not reached.  A fixture of 31 July 2012 was offered, however, the respondent’s counsel was not available that day.   Because of that the matter was adjourned to a callover on 28 June 2012 for a further fixture to be allocated.    It  was  then  further  adjourned  for  callover  on  26  July  2012.    The application for stay was filed.  Ultimately a fixture with the fixture for 24 September

2012 was allocated.

[5]      The question stated for the opinion of this Court is whether Judge Clapham’s decision was erroneous in point of law and, in particular, was the Judge correct that a stay of proceedings was the appropriate remedy in this case where the delay of just under 15 months from arrest to defended hearing was largely due to administrative issues with the Papakura District Court and there was no evidence that a fair hearing was no longer possible?

Respondent’s representation

[6]      Although the respondent was represented before the Judge in the District Court he is not represented in this Court.  He has not appeared at the hearing of this case stated appeal.  Nor has he appeared at any of the callovers of the appeal in this Court.

[7]      When the matter was called this afternoon the Registrar called the respondent outside the Court but he was not within the premises of the Court.  Notice of today’s fixture was provided by the Registry to the respondent by written advice to the address of Flat 2, 565 Great South Road, Papakura.   That is the address on the information.   It is also the address that the police have for the respondent.   Ms Longdill has provided the Court with a copy of a letter delivered by courier to Mr Brown at that address.  The letter is dated 23 January 2013.  It enclosed the police submissions and case book.  The letter also confirmed in bold that the hearing of the appeal was to be today, Tuesday 5 February 2013 at 2.15 pm.  I am advised by Ms Longdill that she understands the courier was signed for by a Mervyn at that address of Flat 2, 565 Great South Road.

[8]      I am satisfied that the respondent is aware of today’s hearing but for his own

reasons has chosen not to attend.  I propose to deal with the matter in his absence.

[9]      The grounds for the case stated are that the Judge erred in law by failing to consider whether the delay was such as to be a breach of the respondent Mr Brown’s rights under s 25(b) of the New Zealand Bill of Rights Act 1990, such as to require a stay by way of response from the Court, and the Judge failed to consider or apply the leading authority on the stay of proceedings:   R v Williams,[1]  and other relevant authorities.

[1] R v Williams [2009] 2 NZLR 750; [2009] NZSC 41.

[10]     It is clear that the Judge relied upon the delay in the prosecution of the case to stay the proceeding.   However, the police are correct in their submission that the Judge did not, in the course of his decision, refer to any authority relevant to the issue of whether the delay was such as to require a stay.  The primary reason that the Judge gave for the stay is contained in [6] of his decision, in which he said, after reciting the history to the proceeding:

[6]       In addition other matters that would have been allocated for this date have  been  remanded  to  later  dates,  so  members  of  the  community themselves have suffered from the failure of an administration to correctly allocate work.  This is, in my view, unacceptable.  It is so fundamental that Mr Brown should have had his case dealt with on the allocated date, which should have been initially 25 January when it was fixed but then went to 8

May is unacceptable.  I can see no way of resolving such an abuse by the administration of a defendant’s rights and accordingly I stay the prosecution.

The Judge then provided an addendum to his oral judgment by focusing the criticism at the level of administration responsible for the allocation of resources rather than Registry staff and referred to certain time limits under the Summary Proceedings Act.  However, as noted, the Judge did not refer to leading authorities on the issue of stay.

[11]     In R v Vaihu[2] the Court of Appeal characterised the remedy of a stay for delay as reserved for rare and exceptional cases.

[2] R v Vaihu [2010] NZCA 145.

[12]     In the case of R v Williams the Supreme Court confirmed:[3]

[12]      Whether there has been undue delay in a particular case is a function of time, cause and circumstance. Undue in this context is synonymous with unjustifiable. An accused may acquiesce in the delay, whether in the expectation that it will make the task of the prosecution more difficult or because it defers the day of reckoning. Notwithstanding the suggestions to the contrary of Hardie Boys and McKay JJ in Martin, there is no obligation on any accused to progress matters towards trial, or to protest about delay; the obligation is on the prosecution to ensure trial without  undue delay. Whether delay is attributable to the courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted.

[3] R v Williams at [12].

[13]     In M v R[4]  the Court of Appeal confirmed that the Court was entitled to exclude delays caused by the accused on the basis the accused has in those circumstances waived a time in respect of the delays.   The Court of Appeal also made the point that whether there has been undue delay is a matter of judicial determination involving the balancing of interests rather than the application of any mathematical or administrative formula.

[4] M v R [2012] NZCA 270.

[14]     In  the present  case some of the delay is attributable to the respondent’s actions.   Mr Brown took some time to arrange legal representation.   Also, it is significant that when the hearing on 8 May 2012 was adjourned the Court was able to offer a defended hearing of 31 July 2012 but that was refused as Mr Brown’s then counsel was unavailable.   Given the delay between 8 May and 31 July 2012 Mr Brown would have had the opportunity to instruct alternative counsel.

[15]     I agree that the first and last two months of the delay should be excluded leaving a total period of delay attributable to administrative and procedural delay of

10 months.

[16]     While  I  accept,  having  regard  to  M  v  R,  that  there  is  no  particular mathematical or administrative formula it is relevant to consider other cases where the issue of delay has been considered.

[17]     In Hancock v R[5] the Court of Appeal held that a period of about three and a half years was not undue delay.  In McGrath v Police,[6] a decision that is particularly

relevant to the present one, Allan J considered the position of a recidivist drink driver when there was a delay of 18 months from arrest to disposition.   Three defended hearing days had been missed.  On one occasion there had been no Judge available. On another occasion there were too many cases in the list and on another occasion a Judge had been unwell, all administrative issues of the kind that Judge Clapham had considered fatal to the prosecution in this case.

[5] Hancock v R [2012] NZCA 292.

[6] McGrath v Police HC Auckland CRI-2011-404-110, 20 December 2011.

[18]     In McGrath Judge Davis had refused to grant a stay in the District Court.  On appeal Allan J upheld that decision stating:

[82]     I am satisfied that the Judge was right to refuse a stay on delay grounds.  This is not a case in which blame for the unfortunately attenuated pre-trial period can be laid at the door of the prosecution.  For the most part it appears the problem stemmed from difficulties in the allocation of judicial resources.  Only very limited personal prejudice has been identified by the appellant, and none at all in respect of the conduct of the trial itself.

[83]      In Vaihu, the Court of Appeal characterised the remedy of a stay for delay as reserved for “rare and exceptional” cases.  This case does not come close to meeting that standard.  In my view, the Judge was right to conclude that a stay was unwarranted.

[19]     In the present case there is no suggestion of prejudice.

[20]     A relevant factor is the seriousness of the offending.  The offending by Mr Brown is his third or subsequent offence.   The reading was high.   The offending carries a maximum penalty of two years’ imprisonment and a mandatory disqualification for more than a year.

[21]     While the Court has some sympathy for the administrative difficulties that Judges in the busy District Court may face, I am satisfied in this case that in light of the authorities and the circumstances of this case the Judge was wrong to stay these proceedings as he did.

[22]     In the circumstances it is unnecessary to consider the alternative submissions advanced by Ms Longdill on behalf of the police that even if the Court was satisfied there was undue delay some other remedy short of a stay might have been appropriate.

Result

[23]     For that reason the answer to the question posed for this Court is no, the Judge was not correct that a stay of proceedings was required or was the appropriate remedy.

Disposition

[24]     Given the previous findings of Judge Clapham the outcome is that the order for stay is quashed.  The charge has been found proved.  Mr Brown is remanded to the District Court at Papakura for callover at 10.00 am on Thursday 7 March 2013

for the entry of conviction and allocation of a sentencing date.

Venning J