R v Police HC Christchurch Cri-2008-409-207

[2009] NZHC 452

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2008-409-000207

R

v

POLICE

Hearing:         25 February 2009

Counsel:         B Dawson for Appellant

K Basire for Police

Judgment:      24 April 2009

ADDENDUM TO JUDGMENT OF HON. JUSTICE FRENCH OF 30 MARCH 2009

[1]      After my judgment of 30 March 2009 was written and distributed to the parties, Mr Dawson filed submissions in reply.  Unfortunately, I was not aware the Crown had filed its submissions late, and was of the misunderstanding that Mr Dawson did not wish to add to the very full further submissions he had already filed on 12 March 2009.  Mr Dawson was, however, entitled to file submissions in reply,

and accordingly it is only right they should be considered.

R V POLICE HC CHCH CRI-2008-409-000207  24 April 2009

[2]      The  main  points  raised  in  the  reply  submissions  can  be  summarised  as follows:

i)        The prosecution bears responsibility for the error made by the

Justices, and should not obtain the benefit of a re-hearing.

ii)Because the case was decided under the old Rule that has been replaced, its general importance is minimal.

iii)The prosecution should have been brought under a different statutory provision and to remit the matter back to the District Court would perpetuate the confusion.

iv)      The certificate is irrefutable.

[3]      Some of the material raised in the submissions, particularly that relating to the third point, goes beyond the proper function of a reply.

[4]      Counsel for the police, Ms Basire, takes the view that it amounts to a new ground  of  appeal  and  therefore  declined  to  make  any  further  submissions  in response.  However, I do not think that is correct.  It was not being advanced as a reason why the Justices’ finding should be overturned in the first place but simply as a factor to be taken into account in considering the exercise of my discretion to grant a rehearing or not.

[5]      In  any  event,  I  am  not  persuaded  by  the  matters  raised  in  the  reply submissions to revise my earlier view  as expressed in  the  30  March  judgment. Indeed, if anything, some of the new factual material raised about the certificate only serves to reinforce my view that a re-hearing is the most desirable course of action. Further,  Mr  Dawson’s  submissions  appear  to  some  extent  to  be  based  on  the mistaken premise that at a re-hearing the parties are somehow limited to the evidence they called at the first hearing.  That is not correct.  It would be open to either party to call other evidence.   The police may, for example, wish to call further expert evidence.

[6]      I therefore confirm my decision that the appeal is allowed, and the matter remitted to the District Court for a re-hearing.

Solicitors:
Community Law, Christchurch
Crown Solicitor, Christchurch