R v F HC Gisborne CRI 2010-016-992

[2010] NZHC 1579

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2010-016-000992

THE QUEEN

v

F

Hearing:         5 August 2010

Counsel:         J D Lucas for Crown

M Sceats for Mr F 

Judgment:      5 August 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 609, Napier
Counsel:

M Sceats, PO Box 435, Gisborne

R V F HC GIS CRI 2010-016-000992  5 August 2010

Introduction

[1]      A novel question about the new committal regime[1] has arisen, in the context of the entry of guilty pleas after the date on which a standard committal ought to have been effected.

[1] Summary Proceedings Act 1957, Part 5 introduced as from 2 June 2009.

[2]     Mr F   was arrested and charged with cultivation of cannabis and possession of cannabis for the purposes of supply.   The charges arose out of the execution of a search warrant at his property in Gisborne, on 21 April 2010.

[3]      Subsequently, Mr F   purported to enter guilty pleas to the charges.[2]   It had been thought by the Crown that he had been remanded to this Court for sentence today.  I have been asked to determine whether Mr F   is properly before this Court for sentence.

Chronology

[2] Summary Proceedings Act 1957, s 160.

[4]      Following  his  arrest,  Mr  F    appeared  for  the  first  time  before  the District Court on 30 April 2010.  He was remanded without plea.  As a result of the way in which the standard committal procedure now works, the prosecution had 42 days within which to file its formal witness statements for committal purposes.[3]

[3] Ibid, s 168(1).

[5]      No application was made by Mr F   for oral evidence to be given at a committal hearing.[4]    That left committal to be determined in accordance with the standard committal procedure.[5]

[4] Ibid, ss 180 and 181.

[5] Ibid, s 146 (definition of “standard committal”).  A Registrar has power to conduct the committal proceeding: s 5(1) of the Act.

[6]      The  term  “standard  committal”  is  defined  by  s 146  of  the  Summary

Proceedings Act 1957 (the Act), as follows:

146  Interpretation

In this Part and Part 5A,—

...

standard committal is a committal that takes place if no oral evidence order has been made under section 180 or 181 allowing the oral examination of a witness.

[7]      The procedure for a “standard committal” is set out in more detail in s 177 of the Act:

177   Timing and procedure at standard committal

(1)   A standard committal must not take place,—

(a)    in a case where no application is made for an oral evidence order within the period specified in section 178(2), before the earlier of the expiry of 14 days after—

(i)     the date on which the prosecutor is required to file written statements under section 168(1); or

(ii)   the date on which the Court receives a notice from the defendant that he or she will not apply for an oral evidence order:

(b)    in a case where an application for an oral evidence order is made within the period specified in section 178(2), before the date on which that application is declined.

(2)     At a standard committal, the Court must, without considering any evidence that has been filed by the prosecution, commit the defendant for trial in accordance with sections 184M and 184N.

The standard committal process is also the subject of a Practice Note issued by the

Chief District Court Judge in June 2009.[6]

[6] Available at

[8]      In terms of s 177(1)(a)(i) of the Act, the prosecution filed formal written statements on 11 June 2010.  Therefore, the period of 14 days to which s 177(1)(a) refers expired on 25 June 2010.

[9]      Section 160 of the Act deals with the entry of pleas of guilty during the committal process:

160   Defendant may plead guilty before committal

(1)  This section applies to a defendant who is—

(a)  represented by a barrister or solicitor; or

(b)     unrepresented, but in respect of whom the requirements of section 30(2) of the Sentencing Act 2002 have been satisfied.

(2)    A defendant to whom this section applies may, at any time before the defendant is committed for trial, ask to be brought before the Court (or, if the defendant is at that time before the Court, ask to be permitted) to plead guilty to the offence with which he or she is charged.

(3)   As soon as practicable after a request under subsection (2) is made, the defendant must be brought before the Court to be dealt with (or, if the defendant is before the Court at the time of that request, must be dealt with) under section 161.

(4)    If the defendant is not before the Court at the time of a request under subsection (2) and is not in custody, notice must be given to him or her of the time and place for attendance before the Court for the purpose of being dealt with under section 161.  (my emphasis)

[10]     Section  184M  of  the  Act  regulates  what  occurs  if  there  is  a  standard committal, or a defendant does not plead guilty.  It provides:

184     Procedure if standard committal occurs or defendant does not plead guilty

(1)   If section 177 (the standard committal) applies, or if, after receiving the advice in section 184I, the defendant does not plead guilty, then the Court must,—

(a)    if the defendant is a natural person, commit the defendant for trial; or

(b)   if the defendant is a corporation, make an order empowering the filing of an indictment in respect of the offence named in the order.

(2)    If the defendant is a corporation, for the purposes of any enactments referring to committal for trial, an order under subsection (1)(b) is deemed to be a committal for trial.

(3)   This section is subject to section 66(6) of this Act and to section 345 of the Crimes Act 1961.  (my emphasis)

Analysis

[11]     Section 177(2)[7]  must be interpreted, in my view, as requiring a Court order for committal for trial.  I reject the submission made by counsel for the Crown that standard committal is automatic and does not require Court intervention.  If that were not the case, s 177(2) would be superfluous and the mandatory requirement for the Court to commit would have been unnecessary.[8]

[7] See para [7] above.

[8] Ibid, s 160(2).

[12]     It appears that, on 25 June 2010, the Registrar received a pre-committal check-sheet form from counsel for the accused indicating an application for the accused to plead guilty on 13 July 2010.  The Court file indicates that this was sent by facsimile to the prosecutor on 26 June 2010.

[13]     Ultimately, the proceeding came before Judge Maze, on 13 July 2010, when the charges were put to Mr F   and guilty pleas were entered.  It is clear from what is recorded of the discussion between the prosecutor and the Judge, that the prosecutor was unaware that the accused intended to enter guilty pleas at that time.

[14]     Before me, the Crown contended that there was no jurisdiction for Judge Maze to accept the pleas because they were entered after the period by which the Court is obliged to commit an accused for trial under the standard procedure. However, I interpret the Act as conferring jurisdiction, even in a case where the Registrar does not (inadvertently) make the mandatory order for committal immediately after the relevant period has expired, to receive a guilty plea, at any

time up to the time at which the committal order is in fact made.[9]

[9] Summary Proceedings Act 1957, s 184(1)(a).

[15]     It follows that, in my view, there was jurisdiction for the District Court to accept the pleas of guilty.

[16]     The  next  question  is  whether  sentencing  is  properly  before  this  Court. Mr Sceats, for Mr F  , advised me that he was of the view that sentencing had been adjourned for a District Court Judge to deal with on an indictable sentencing

day.  The Crown was under the misapprehension that the District Court Judge had declined jurisdiction.

[17]     A reading of the transcript of the hearing before Judge Maze makes it clear that the Judge intended to obtain relevant reports and for the District Court to sentence on 6 October 2010 at 2.15pm.  A decision whether or not to decline jurisdiction would appropriately be made after hearing submissions and considering reports at that time.

Result

[18]     I rule that sentencing is not properly before this Court.   Sentencing must proceed in the District Court at 2.15pm on 6 October 2010, as directed by Judge

Maze.

P R Heath J