Police v District Court at Manukau HC Auckland CIV 2009-404-8451
[2010] NZHC 812
•19 April 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2009-404-8451
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF a decision of the District Court at Manukau
BETWEEN POLICE Plaintiff
ANDDISTRICT COURT AT MANUKAU First Defendant
ANDAIOMANU PATEA (aka MANU PATEA) Second Defendant
Hearing: 15 April 2010
Counsel: Anna R Longdill for Plaintiff
No appearance for First Defendant (abiding decision) Peter M Webb for Second Defendant
Judgment: 19 April 2010 at 3:00pm
RESERVED JUDGMENT OF HUGH WILLIAMS J.
This judgment was delivered by The Hon. Justice Hugh Williams on
19 April 2010 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
……………………………………………..
Registrar/Deputy Registrar
A.The Police application for judicial review is granted on each of the causes of action pleaded.
B. The information is reinstated and is to be called in the Manukau District
Court on a date and time to be advised by the Registrar of that Court.
POLICE V DISTRICT COURT AT MANUKAU AND ANOR HC AK CIV-2009-404-8451 19 April 2010
Introduction
[1] This application for judicial review challenges the dismissal on 27 October
2009 by Judge Epati in the Manukau District Court of an information against the second defendant, Mr Patea.
[2] At the conclusion of the hearing, counsel were advised the claim would be allowed, the dismissal set aside and the case remitted to the District Court at Manukau for re-hearing, but that the formal judgment would be reserved.
[3] This is that judgment.
Facts
[4] On the evening of 18 January 2009 a car being driven by Mr Patea was stopped by Police. According to the Police Summary of Facts – as yet untested of course – he exhibited signs of having recently drunk alcohol but failed to provide an evidential breath test despite six attempts. Shortly after midnight on 19 January
2009 he refused a Police request for a blood sample. According to the Summary, he was unruly following his arrest and at one stage at least was charged with resisting Police.
[5] Mr Patea was charged under an information ending 0976 with refusing to permit a blood specimen to be taken after having been required to provide such.
[6] It is unnecessary for present purposes to detail the way in which the information proceeded through the Manukau District Court save to note that it appears the matter was called on perhaps 10 occasions between 23 January 2009 and
27 October 2009 when the information was dismissed. The following points are, however, pertinent:
a) On 18 February 2009 the Police received a disclosure request from the first barrister instructed by Mr Patea. The required material was posted the following day.
b)By 2 March 2009 Mr Maddox was appearing for Mr Patea and because of the change of counsel Police sent a further set of the required disclosure material to Mr Maddox on 14 April 2009. The accompanying letter showed it included the standard material which would be produced as exhibits in a charge of this sort, together with evidential statements from the officer who arrested Mr Patea. The material included an Intoxilyser/Seres report in Mr Patea’s name but with the printed date 7 December 2008.
c) On 2 July 2009 Mr Maddox sent a disclosure request to Police, requiring disclosure of “all maintenance records for the Seres Ethylometre Model 679ENZ Device Serial No. 2784”, including all log books for the three months both before and after 18 January 2009.
d)On 21 August 2009 – the date of the first defended hearing for Mr Patea’s charge (though the case could not proceed that day) - Police emailed Mr Maddox a further copy of the Certificate of Compliance for the machine, commented on its deemed sufficiency, and said that “the documents you requested are held by ESR and not the Police ... but you are welcome to obtain them from ESR”. On that date a second defended hearing for Mr Patea was fixed for 27 October
2009.
e) In preparation for the 27 October 2009 hearing, the Police, being aware of the erroneous date on the Intoxilyser/Seres report, asked Dr Gainsford of ESR to provide a written statement as to whether incorrect dates and times displayed on the device as to the breath- alcohol analysis affected its results. Dr Gainsford provided that statement on 17 September 2009. He said that incorrect times and dates have no effect on the breath-alcohol analysis results. The Police
version of events is that a copy of that statement was sent to
Mr Maddox on 22 September 2009 but no reply was received.
f) The Police file manager for Mr Patea’s prosecution, Mr Carstens, said in an affidavit filed in this proceeding that he telephoned Mr Maddox on 21 October 2009 and told him he would hand deliver Dr Gainsford’s statement to him that day and did so. The accompanying letter drew attention to R v Allen[1]where the Court of Appeal held there was no defence to a charge such as that faced by Mr Patea on the grounds that the breath testing device malfunctioned.
g) The officer telephoned Mr Maddox on 22 October 2009. There is some difference of recollection as to what ensued but Mr Carstens said he enquired whether Mr Maddox had problems with Dr Gainsford’s statement and was advised counsel would be seeking dismissal of the charge. Accordingly Mr Carstens arranged for Dr Gainsford to attend Court at the defended hearing on 27 October
2009 and on the same day, 22 October 2009, Mr Carstens delivered an amended caption summary and witness list including Dr Gainsford to Mr Maddox.
[1] R v Allen CA15/06, 4 May 2006
[7] It should be noted that in an affidavit sworn on 23 March 2010 but only filed at the commencement of this hearing, Mr Maddox had a view of events which contrasted to a degree with that put forward by Mr Carstens. He said that as a “tactical move” he advised the prosecuting sergeant on 21 August 2009 that Mr Patea would deny having been given any form of breath test and thus was surprised when he received Dr Gainsford’s statement on 21 October 2009. He said that on that latter date he sent a fax again requesting the log book and maintenance records for the Intoxilyser/Seres device. By that, he must have been disputing his receipt of Mr Carstens’ email of 21 August 2009 and it is a little difficult to follow why Mr Maddox would be seeking the log book and maintenance records for the device from the Police when he, as a barrister experienced in the area must know
such materials are not within the Police custody and control and third party disclosure would be required to obtain access to them. He was well aware of the Court of Appeal’s judgment in Allen.
[8] Mr Maddox said that during the phone call with Mr Carstens on 22 October
2009 he reiterated the defence that no evidential breath test had ever been administered to Mr Patea. He did not request Dr Gainsford attend Court and was surprised to see him there on 27 October. Mr Maddox said:
“Mr Gainsford did not have the disclosure with him requested by the defence”
but did not address how any disclosure request direction to Police for the records he sought could have been complied with by ESR. Mr Maddox did, however, say:
“I did not receive any email since September/October 2009 which is why I was not aware that the Police were declining to release what they considered to be third party disclosure.”
Hearing
[9] The transcript of what took place at the Manukau District Court on
27 October 2009 covers about four pages of transcript. It consists entirely of discussion between Mr Maddox, the Police Prosecutor and the Judge.
[10] It begins with Mr Maddox saying the defence was ready to proceed, though he asserted that until he received Dr Gainsford’s statement at the end of the preceding week he had “no disclosure whatsoever on the defence that I had proffered the Police”. He said Dr Gainsford’s presence put counsel in a “very difficult position”.
[11] The Prosecutor responded by reference to the brevity of Dr Gainsford’s statement and said the Police were ready to proceed.
[12] Mr Maddox then responded with reference to Mr Carstens’ letter of
21 October 2009 which omitted to say Dr Gainsford would be called as a witness,
reiterated that he was in a very difficult position, and then said he was going to ask that the “matter should be dismissed for abuse of process in respect of disclosure”. He referred to his 23 October 2009 fax, but said that his request was for a “office book or a field book kept by Prosecutions authority” relating to the device used and other material. He said the “Police are trying to ambush counsel”.
[13] The Prosecutor then intervened, disputing that last statement, and saying it was “because of Mr Maddox’s insistence on this expert witness being called and his lack of acceptance of the statement, the Police have had to call him”.
[14] He went on to discuss the log book but the Judge dismissed that aspect of the matter and said that “You said that defence counsel has insisted on calling this witness” and asked how that occurred.
[15] The next passage in the transcript is headed with Mr Maddox’s name but was probably a response by the Prosecutor.
[16] Mr Maddox then objected, saying that he would –
“like counsel to answer Your Honour’s question as to how he knew that I
knew Mr Gainsford was being brought up, because I didn’t until today.”
[17] The entire response from the Judge was:
“Yes, CRN 0976 is dismissed”.
Pleadings and Submissions
[18] The claim was based on alleged error of law that there was no evidential foundation for the Court to conclude there had been an abuse of process and if prejudice was shown an adjournment should have resulted. The second cause of action was that the Court had no power to dismiss the charge as ss 62 and 68 of the Summary Proceedings Act 1957 were inapplicable. The third error of law was that the nature of the decision to dismiss the charge without hearing evidence required the provision of reasons.
[19] A defence filed on Mr Patea’s behalf by counsel other than Mr Webb said the Court’s decision was arrived at following submissions, the Court dismissed the charge pursuant to its inherent jurisdiction, and the reasons for dismissing the information “were implicit”.
[20] Ms Longdill amplified the claim in her submissions. She submitted that s 62 was inapplicable as the informant appeared and Police were ready to proceed: Leaunoa v Manukau District Court[2]. She submitted s 68 was similarly inapplicable as the Court did not hear “what each party has to say and the evidence adduced by each”: McMenamin v Attorney-General[3]
[2] Leaunoa v Manukau District Court [2009] NZLR (or NZAR??) 230.
[3] McMenamin v Attorney-General [1985] 2 NZLR 274.
[21] Ms Longdill also discussed the comprehensive description of the power to dismiss informations for abuse of process discussed in Attorney-General v District Court of Hamilton[4].
[4] Attorney-General v District Court at Hamilton [2004] 3 NZLR 777.
[22] It is unnecessary to discuss those sections and the authorities in greater detail as Mr Webb responsibly conceded that both ss 62 and 68 were inapplicable.
[23] Ms Longdill analysed the transcript, stressing the decision was reached without evidence and only after hearing parts of counsel’s submissions.
[24] As to the lack of reasons, Ms Longdill referred to the decision of the Court of
Appeal in Lewis v Wilson & Horton Limited[5].
[5] Lewis v Wilson & Horton Limited [2000] 3 NZLR 546, 565-567.
[25] Mr Webb advised the Court he had been firmly instructed by Mr Patea to contest the judicial review as far as was properly available. His helpful submissions raised every point that could be advanced on Mr Patea’s behalf, particularly stressing factual issues arising out of the narrative of events. He submitted that Lewis was a very different case to the present and that:
“in the context of a pressured defended hearings list in a District Court it is inevitable, perhaps desirable, that procedural matters will be dealt with in the most expeditious manner possible.”
Discussion and Decision
[26] It was properly conceded that neither ss 62 nor 68 of the Summary Proceedings Act 1957 applied to the circumstances in which the information against Mr Patea was dismissed. Accordingly, the Judge had no jurisdiction to act as he did pursuant to statutory power.
[27] The only basis on which the Judge’s actions could be justified was accordingly pursuant to the District Court’s inherent jurisdiction, but it is plain from the transcript that dismissal of the information occurred without hearing evidence, either on the facts or on the procedural lead up to the 27 October hearing and without hearing full and considered submissions from counsel, again both on the factual and the procedural matters raised by the information.
[28] Dismissal of the information in those circumstances therefore could not be justified by reference to the District Court’s limited inherent jurisdiction.
[29] What should have happened, if Mr Maddox seriously wished to pursue an application to dismiss the information against Mr Patea for abuse of process, was that an application for dismissal on that ground should have been filed, evidence – particularly relating to the factual dispute between Messrs Carstens and Maddox – should have been given, and a reasoned decision delivered.
[30] Dismissal (or conviction) following the laying of an information is, of course, an important judicial function requiring to be arrived at only following the observation of proper procedure. That especially applies to the dismissal of informations on the ground of abuse of process, since a conclusion to that end normally only follows a finding that some person or part of the judicial process has not followed what is required.
[31] Here, very little of the appropriate procedure was followed and a dismissal of the information should not have resulted.
[32] Judicial review should also be granted on the basis of there being a lack of reasoned judgment.
[33] In Lewis, Elias CJ, speaking for the Court, said:
[75] There is no invariable rule established by New Zealand case law that Courts must give reasons for their decisions. That is a proposition which may seem surprising. Many may think that it is the function of professional Judges to give reasons for their decisions. And in recent years the general proposition has been steadily eroded in the United Kingdom and Australia, although in Canada the traditional view seems still to be adhered to. ...
[76] There are three main reasons why the provision of reasons by Judges is desirable. Others are identified in Singh v Chief Executive Officer, Department of Labour [1999] NZAR 258 at pp 262 – 263. Most importantly, the provision of reasons by a Judge is an important part of openness in the administration of justice. The principle of open justice in criminal proceedings is affirmed by s 138(1) of the Criminal Justice Act 1985 and s 25(a) of the New Zealand Bill of Rights Act 1990, but it is far older in observance and extends beyond criminal proceedings (although it is of particular importance there). It yields only where the application of the general rule in the particular circumstances of the case would frustrate the interests of justice, and then only to the extent necessary (Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120 at p 123 per Woodhouse P; Attorney-General v Leveller Magazine Ltd [1979] AC 440 at p 450 per Lord Diplock; Police v O'Connor [1992] 1 NZLR 87 at pp 95 – 96 per Thomas J). There were no special circumstances in the present case which required modification of the principle of open justice.
[77] Moreover, the lack of reasons in the present case failed to correct irregularities in the conduct of the hearing. It was understandable that the Judge should have acceded to the request from the police prosecutor to see counsel for the appellant and the prosecutor in Chambers. But it was a course which carried special risks for the principle of open justice. It made it
incumbent on the Judge to take care in communicating his eventual decision. In the event, the interests of open justice were not served. As the transcript of the proceedings indicates, the public exchanges between counsel, the police prosecutor and the Judge proceeded by allusion to the written material and what had transpired in Chambers. The case would have been largely unintelligible to anyone present in Court. It effectively proceeded on a basis understood only by those who had participated in the Chambers hearing.
...
[79] The principle of open justice serves a wider purpose than the interests represented in the particular case. It is critical to the maintenance of public confidence in the system of justice. Without reasons, it may not be possible to understand why judicial authority has been used in a particular way. The public is excluded from decision making in the Courts. Judicial accountability, which is maintained primarily through the requirement that justice be administered in public, is undermined.
[80] The second main reason why it said Judges must give reasons is that failure to do so means that the lawfulness of what is done cannot be assessed by a Court exercising supervisory jurisdiction. Those who exercise power must keep within the limits imposed by law. They must address the right questions and they must correctly apply the law. The assurance that they will do so is provided by the supervisory and appellate Courts. It is fundamental to the rule of law. The supervisory jurisdiction is the means by which those affected by judicial orders, but who are not parties to the determination and who have no rights of appeal or rehearing, obtain redress. Their right to seek such review is affirmed by s 27 of the New Zealand Bill of Rights 1990. It is important that sufficient reasons are given to enable someone affected to know why the decision was made and to be able to be satisfied that it was lawful. Without such obligation, the right to seek judicial review of a determination will in many cases be undermined.
[81] The reasons may be abbreviated. In some cases they will be evident without express reference. What is necessary, and why it is necessary was described in relation to the Civil Service Appeal Board (a body which carried out a judicial function) by Lord Donaldson MR in R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310 at p 319:
“. . . the board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free- wheeling palm tree.''
[82] The third main basis for giving reasons is that they provide a discipline for the Judge which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice. In the present case it is hard to believe that the Judge would have granted the order if he had formally marshalled his reasons for doing so.
[83] In New Zealand, the leading case on provision of reasons is R v Awatere [1982] 1 NZLR 644 at pp 648 – 649. The Court declined to lay down “an inflexible rule of universal application”, while recognising that “It must always be good judicial practice to provide a reasoned decision.'' The same view was taken by the majority in a differently constituted Court in R v MacPherson [1982] 1 NZLR 650. Somers J was prepared to go further. He would have held in that case that it was implicit in the right of appeal conferred by the Summary Proceedings Act 1957 that the Judge was under a duty to make “such findings or express such reasons or conclusions as in the particular circumstances are necessary to render the right of appeal effective” (R v MacPherson at p 652). Such reasons, he thought, would not need to be elaborate and would add little to what is usually done in New Zealand Courts.
[84] R v Awatere was considered and applied in R v Jefferies [1999] 3 NZLR
211. That case confirmed that while the giving of sufficient reasons for decision is always highly desirable, it is not an inflexible requirement.
[85] Whether it is time to say that as a general rule Judges must give reasons, is a matter this Court would wish to consider at an early opportunity. . . .
[34] While it is acknowledged that in the context of a busy defended list in the District Court, judgments and reasons for the Court’s decisions may not be especially polished and may quite properly be abbreviated, there is nonetheless no
basis for there to be no reasons at all for the Court adopting a particular course of action.
[35] Here, Mr Maddox’s suggestion of an intention to ask for the information to be dismissed for “abuse of process in respect of disclosure” was not followed by any detailed elaboration, application or evidence on the topic.
[36] It could not therefore be said that the Judge’s later response that “CRN 0976 is dismissed” without more could be said to comply with Lewis.
Result
[37] In the result, the Police application for judicial review of the decision of the Manukau District Court on 27 October 2009 to dismiss information CRN 0976 against the second defendant is granted on each of the causes of action pleaded.
[38] The information is reinstated and is to be called in the Manukau District Court on a date and time to be advised by the Registrar of that Court to Mr Patea and counsel, with a view to making appropriate arrangements for a defended hearing.
[39] The Police did not pursue the pleaded application for costs.
.................................................................
HUGH WILLIAMS J.
Solicitors:
Crown Solicitor, PO Box 2213 Auckland 1140
Email: anna[email protected]
Copy for:
Peter M Webb, P O Box 76 461 Manukau City 2241
Email: [email protected]
James J Maddox, P O Box 11 342 Ellerslie, Auckland 1542
Email: james[email protected]
Judge Epati, Manukau District Court
Case Officer: Mohamme[email protected]
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