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…

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.

Continue reading Police v Brown

Details

AGLC: Police v Brown [2013] NZHC 76
Case: [2013] NZHC 76
Decision Date: 5 February 2013

CaseChat Overview and Summary

The appeal in Police v Brown was heard by the High Court of New Zealand, Auckland Registry, on 5 February 2013. The New Zealand Police sought to appeal a decision of Judge Clapham in the District Court at Papakura to stay the prosecution against Mervyn James Brown. The appeal was heard in the absence of Brown, who had been notified of the hearing but chose not to attend. The issue before the Court was whether Judge Clapham erred in law in staying the prosecution due to undue administrative delay.

The Court noted that the prosecution of Brown had been delayed for nearly 15 months from the time of his arrest to the defended hearing, primarily due to administrative issues within the Papakura District Court. Despite finding that the charge against Brown had been proved, Judge Clapham decided to stay the proceedings, citing the administrative delay as unacceptable. The High Court was required to determine whether the stay was the appropriate remedy under the circumstances.

In its reasoning, the Court highlighted that the remedy of a stay for undue delay is reserved for rare and exceptional cases. The Court reviewed relevant authorities, including R v Williams and R v Vaihu, which established that undue delay is determined by considering time, cause, and circumstance, and that an accused does not have an obligation to protest about delay. The Court also noted that some of the delay was attributable to Brown’s actions, such as the time taken to arrange legal representation. After excluding the periods attributable to Brown’s actions, the Court determined that approximately 10 months of the delay were due to administrative issues.

The Court compared the delay in Brown’s case with other cases where the issue of delay had been considered, such as Hancock v R and McGrath v Police. In these cases, longer delays had been found not to be undue. The Court concluded that the delay in Brown’s case did not meet the standard for a stay, as there was no suggestion of prejudice and the seriousness of the offence warranted a firm stance on the delay.

Ultimately, the High Court found that Judge Clapham was incorrect in deciding that a stay of proceedings was required or was the appropriate remedy. The order for stay was quashed, and Brown was remanded to the District Court for the entry of conviction and allocation of a sentencing date.

Orders