Police v North Shore District Court HC Auckland M752-Sw01

[2001] NZHC 1176

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M752-SW01

UNDER the Judicature Amendment Act 1972

IN THE MATTER of judicial review

BETWEEN NEW ZEALAND POLICE
Plaintiff

AND NORTH SHORE DISTRICT COURT
First Defendant

AND B J MANTON
Second Defendant

Date of hearing: 3 December 2001

Counsel: David Johnstone for Plaintiff
Michael Levett for Second Defendant

Date of judgment: 3 December 2001

(ORAL) JUDGMENT OF CHAMBERS J

Lawyers:
The Crown Solicitor, DX CP 24063, Auckland, for Plaintiff
Crown Law Office, DX SP 20208, Wellington, for First Defendant
M J Levett, DX BP 66052, Takapuna, for Second Defendant

A drink-driving case in the District Court

[1] On 22 October last year, a police officer found Bryan Manton asleep in a motor vehicle in Diana Drive in Glenfield. She woke him and asked him whether he had been drinking. She then asked him to undergo a breath test. It was found to be positive. Mr Manton was charged with driving with excess breath alcohol, contrary to s 51(1) of the Land Transport Act 1998.

[2] Mr Manton’s case came before the District Court at North Shore on 17 January this year. Mr Manton represented himself. There were two witnesses for the prosecution. The first was a security guard, Christopher Olsen. He gave evidence that he had seen Mr Manton’s vehicle travelling down Diana Drive and had seen the vehicle stop. He was somewhat suspicious about the place where it had stopped and called the Police. He said in evidence that he had not seen anyone leave the vehicle. He said that he had kept the car under observation until the Police arrived. The other prosecution witness was Constable Kylie McIvor. It was she who approached the vehicle, questioned Mr Manton, and administered the breath test.

[3] Following the completion of the prosecution evidence, Mr Manton elected to give evidence. He said he lived in Dargaville. He said that he had been drinking on the night in question. He said that he had then driven with a friend to Diana Drive. The friend was the driver. When they got to Diana Drive his friend got out of the car and went home. The friend lived, Mr Manton said, a couple of hundred metres up the road from where he parked the car. Mr Manton said that, because he was drunk, he decided not to drive the vehicle. Because he did not trust Auckland and did not want his car to be stolen, he decided to remain with it. He said that he transferred to the driver’s seat because it, unlike the passenger seat, reclined. He then fell asleep. He denied that he had been driving the car that evening. Sergeant Crozier, the prosecuting sergeant, cross-examined Mr Manton.

[4] At the conclusion of Mr Manton’s evidence, the trial was adjourned. It is not clear from the evidence before me exactly why the trial was adjourned but it appears to have been adjourned so that Mr Manton could call further evidence. It may be that he intended to call the man who he said had been driving the vehicle that night.

[5] The case came back before the court on 29 March this year. A different police sergeant appeared for the Police on this occasion. He was Sergeant Stevens. Sergeant Stevens says in his affidavit that the judge asked Mr Manton whether the alleged driver of the car was with him. Mr Manton said that he did not have him. The judge asked Mr Manton to supply the name of the driver to Sergeant Stevens. Mr Manton declined to do so. The judge then directed Mr Manton to enter the witness box. Mr Manton did so. It is common ground that Mr Manton was not sworn. The judge then asked Mr Manton a number of questions. In essence, these questions related to what had happened on the night of the alleged offence. The evidence given by Mr Manton was generally to the same effect as the evidence he had given back on 17 January.

[6] Immediately after the judge finished asking Mr Manton questions, he delivered an oral decision. He did not give Sergeant Stevens any opportunity to cross-examine Mr Manton. The judge then delivered the following decision. Because it is reasonably brief I set it out in full:

“The defendant is charged with driving with excess breath alcohol. He was observed by a security guard, Mr Olsen. Mr Olsen said that he saw the vehicle in Diana Drive near Englefields. He was suspicious. As far as he could see there was only one person in the car. He could not see who the driver was. He called the Police and they attended five to 10 minutes later. They found the defendant asleep in the driver’s seat. He was breath tested and found to be positive.

The defendant says it was his car but he had been driven there by a designated driver. There was really no point in the defendant being in that area because he lives in Dargaville. He said the reason that they stopped in Diana Drive was because the driver lived a little way up the road. He parked the car where the defendant could go to sleep, and left.

The whole case turns really on the evidence of the security guard. Bearing in mind the defendant’s evidence that he was not the driver I am not prepared to say that the charge has been proved beyond reasonable doubt. The charge is dismissed.”

[7] On 28 May, the Police commenced an application for review under the Judicature Amendment Act 1972. The Police asserted that the judge had made two errors of law. First, the judge had allowed Mr Manton to give evidence on 29 March without having been first sworn. That was contrary to the Summary Proceedings Act 1957 s 60, which directs that every witness at the hearing of any charge shall be examined on oath. Secondly, the Police submitted that the judge had erred in law in dismissing the information against Mr Manton without first giving the prosecutor the opportunity to cross-examine him. That was said to be contrary to the Summary Proceedings Act s 67(6). The Police sought an order quashing or setting aside the judge’s decision.

Issues

[8] The application for review raises three issues:

[a] Did the judge err in taking evidence from Mr Manton without having him sworn?

[b] Did the judge err in not permitting the prosecutor to cross-examine him?

[c] If errors were made, should relief be granted under the Judicature Amendment Act?

[9] I shall deal with those issues in turn.

Unsworn evidence

[10] There is no dispute that what Mr Manton said on 29 March when he was in the witness box was unsworn. Mr Manton accepts that. It is also accepted by the judge, on whose behalf a memorandum was filed, with the consent of all parties. The only possible question can be whether what Mr Manton said on 29 March was ‘evidence’. I wondered at one stage whether it might more accurately be termed ‘submissions’, as might be made if the court were asking counsel to refresh the court’s mind following an adjournment as to the evidence that had been given at the earlier hearing. On reflection, however, I have decided that there can be no doubt that what Mr Manton gave on 29 March was evidence. The judge, in the memorandum filed on his behalf by Crown counsel, accepts that Mr Manton did give ‘evidence’ on 29 March. The questions asked of Mr Manton were not of a kind that one would ask if simply refreshing memory. The fact that the judge required Mr Manton to enter the witness box and then asked him questions as to what had happened on the night in question clearly indicates that the judge considered that he was taking evidence. It is also significant that the judge must have indicated to the court registrar that a tape recording should be taken of what Mr Manton said. The judge had not had his earlier exchange with Sergeant Stevens recorded in this way, presumably because he regarded that exchange as merely an interchange between bench and bar.

[11] In light of the fact that this evidence was given without the witness first being sworn, there was a breach of s 60 of the Summary Proceedings Act. While the District Court has inherent power to regulate its own procedure, such power does not extend to overriding statutory rules of procedure: see Clifford v Commissioner of Inland Revenue [1966] NZLR 201 (CA) at 203 and C v Department of Social Welfare [1990] 3 NZLR 203 at 208. There was an error in the process adopted.

Absence of opportunity to cross-examine

[12] It is also clear that Sergeant Stevens was not given an opportunity to cross-examine Mr Manton on 29 March. Once again, the judge accepts through counsel that ‘the plaintiff was not given an opportunity to cross-examine [Mr Manton] prior to dismissal of the information’. That was a breach of the Police’s right to cross-examine conferred by the Summary Proceedings Act s 67(6).

Relief under the Judicature Amendment Act

[13] Mr Johnstone, for the Police, accepts that any remedy under the Judicature Amendment Act is discretionary. In this case, I have decided that relief must be declined for a number of reasons, taken in conjunction. These are the reasons.

[14] First, there was in this case a right of appeal under the Summary Proceedings Act s 107. It is well established that, where there is a right of appeal, that right should be exercised in preference to judicial review. It is only in rare cases that the courts will allow the collateral process of judicial review to be used to attack an appealable decision. This case differs from a case like Ministry of Fisheries v District Court at Christchurch HC CHCH M294/00 6 December 2000. In that case, a District Court Judge had held that certain informations were nullities because they had not been properly completed. The Ministry of Fisheries, the prosecutor, brought an application for review against that decision. The reason the Ministry did not appeal is that it was uncertain whether there was a right of appeal since it was not clear whether the informations had been ‘determined’ in terms of s 107(1). William Young J granted relief on the application for review. He accepted that there was doubt as to whether there was a right of appeal and in those circumstances he thought that judicial review was an appropriate procedure for challenging the District Court Judge’s decision. He also said that he could see no prejudice to the defendants from the fact that judicial review had been chosen rather than appeal.

[15] I am aware that William Young J’s decision is currently under appeal, as I sat on the appeal. Without prejudging the outcome of that case, it is appropriate, I think, at this stage to treat William Young J’s decision as correct. That case differs from the present one in that here I do not think there is any doubt that there was a right of appeal. Here the judge undoubtedly heard the evidence and on the basis of it dismissed the prosecution. That was a ‘determination’. But it was a determination reached by a faulty process. There can be no doubt that the points raised by the Police are questions of law. The Police so described them in their statement of claim. Accordingly, the correct procedure here was an appeal by way of case stated on the questions of law identified.

[16] I am not to be taken as saying that the fact that there was a right of appeal should of itself result in the dismissal of the application for review. The presence of a right of appeal does not bar the bringing of an application for review, but the cases make clear that it is a factor in determining whether relief should be granted. See, for example, Golden Bay Cement Co Ltd v Commissioner of Inland Revenue [1996] 2 NZLR 665 (CA) at 672, R v Inland Revenue Commissioners ex p. Preston [1985] AC 835 (HL) at 852, R v Epping & Harlow General Commissioners ex p. Goldstraw [1983] 3 All ER 257 (CA) at 262, and Donnelly v District Court at Auckland HC AK M325/99 8 June 1999 at p 7.

[17] Secondly, there was delay in bringing the application for review. The judge’s decision was given on 29 March. The application for review was not filed until 28 May. Had the appeal route been followed, that appeal would have had to be filed within 14 days: see s 107(2). (I accept that there is power to extend that time: see s 123.) The delay of two months is not explained in the Police affidavits. It is clear from s 107(2) that Parliament intended early finality on summary proceedings decisions. It could be said to be unfair on Mr Manton that he had his case dismissed, the appeal period then expired, and then, some six weeks after the appeal period expired, the Police sought to re-open the matter. The courts are always reluctant to allow statutory appeal periods to be subverted through the issue of judicial review proceedings: see Donnelly (ibid).

[18] Thirdly, it is clear from the judge’s decision that he effectively determined the case on the basis of a conflict of evidence between the security guard and Mr Manton, which conflict left him with a reasonable doubt as to Mr Manton’s guilt. Mr Manton said nothing different at the second hearing from what he had said at the first. The evidence relied on by the judge in his decision was all evidence given by Mr Manton on the first occasion. On that occasion, Mr Manton was cross-examined. In these circumstances, one can perhaps infer that, had Mr Manton not sought the adjournment on 17 January, the information would have been dismissed then and there. Mr Manton should not now have to undergo a second trial because of a judicial mistake on 29 March.

[19] Fourthly, it would be wrong, I think, to submit Mr Manton to a further trial after he was wrongly required to give evidence by the judge on 29 March. Sergeant Stevens’s recollection is that Mr Manton was ‘directed’ to go to the witness box. He was then asked questions by the judge. It is difficult to see the basis upon which the judge considered that Mr Manton could be required to give evidence again at all. Even if he was to give evidence a second time, he should have been asked whether he wished to give evidence. That was in fact another breach of procedure, although not one pleaded by the Police. The problem now is that the evidence Mr Manton gave on that second occasion could potentially be used against him at any new trial.

[20] Finally, I note that none of the errors made was in any way Mr Manton’s fault.

[21] Taking all those circumstances together, it would be unfair to grant relief, the consequence of which would be that Mr Manton had to stand trial again.

Result

[22] The application for review is dismissed.

Costs

[23] Mr Manton has applied for legal aid. Mr Levett, for Mr Manton, says that that application is still undetermined. He believes that the file has been mislaid within the Legal Services Agency. Mr Levett does not intend rendering a fee to Mr Manton but he does intend pursuing the legal aid application. In those circumstances, he seeks that the issue of costs be deferred until the legal aid position is sorted out. Mr Johnstone agrees with that approach.

[24] Accordingly, I defer a consideration of costs. In due course, Mr Levett may file a memorandum setting out the legal aid position and seeking costs, if he chooses. The Police will have 5 working days in which to respond to that memorandum. Mr Levett will then have a further 5 working days in which to reply. ‘Working days’ has the meaning ascribed to it in r 3 of the High Court Rules. I shall determine any application for costs on the papers.