R v Police HC Wanganui CRI-2008-483-26

[2009] NZHC 1460

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2008-483-26

R

v

NEW ZEALAND POLICE

Hearing:         19 October 2009

Appearances: Mr R   appears in person

Mr Rowe for New Zealand Police

Judgment:      22 October 2009

JUDGMENT OF MALLON J (Reasons for decision on 19 October 2009)

[1]      Mr R   appeals against an order made against him by Justices of the Peace. I have allowed his appeal and sent the matter back for rehearing.  I now set out my reasons.

[2]      Mr R   was issued with an infringement offence notice for driving a vehicle on a road at a speed exceeding 100km per hour.  He indicated to the police officer at the time that he would be contesting the infringement.   A notice of hearing was issued and the matter was set down for hearing.   There were a number of adjournments with a final date then set.  Mr R   advised the Court that he would not be able to  attend  that  final  date but  asked  the  Court  to  consider  a  written statement in his absence.  In that written statement he said:

On the day of the alleged offence I was travelling south on a long straight stretch of highway being followed by at least a dozen other vehicles.  The car  immediately  behind  me  was  giving  no  more  than  one  car  length separation and furthermore had I been travelling at the alleged speed then all of the cars following in that convoy would also have been exceeding the speed limit.

R V NEW ZEALAND POLICE HC WANG CRI-2008-483-26 22 October 2009

The officer issuing the infringement notice was more interested in meeting his daily target of tickets rather than any road safety concerns.  In my view his actions were nothing more than revenue gathering.

[3]      It is accepted by the respondent that this does not amount to an admission of liability.  It is noted that it also does not positively assert a defence, but it is accepted that there was no onus on Mr R   to positively prove that he was not speeding – the onus was on the prosecution.

[4]      The Justices of the Peace purported to reinstate the infringement offence notice.   The correct procedure under the Summary Proceedings Act 1957 in these circumstances  was  to  “proceed  with  the  hearing  or  [to]  adjourn  the  hearing” (s 61(b)(ii)).  Proceeding with the hearing would have required formal proof to be provided and it was not.   The respondent accepts this and further accepts that the appeal should be allowed as a result.  The only difference between Mr R   and the respondent is whether the matter should now go back for rehearing.

[5]      Mr R   refers to the decision of R   v Police HC ROT CRI-2004-463-0115

17 March 2005 where there was also a procedural error in how the Justices of the Peace proceeded.  The High Court quashed the orders made by the Justices of the Peace, there having been no conviction properly entered against Mr R  .  Mr R   notes that the matter was not referred back for hearing.  The respondent submits that it is not clear whether the High Court there was asked to refer the matter back.  The respondent further submits that whether I do so is a discretion, and that it is appropriate to exercise that discretion in favour of a referral back in circumstances where there has been a procedural error rather than any issue raised as to whether Mr R   actually committed the offence.

[6]      I agree that the matter should be referred back for the reasons put forward by the respondent.   Accordingly the conviction is set aside but the matter is referred

back for rehearing.

Solicitors:

Mallon J

L Rowe, Armstrong Barton, Wanganui, ph: 06 349-1599, fax: [phone], [email protected]