R v Police HC Wanganui Cri-2009-483-26

[2010] NZHC 642

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2009-483-000026

R

v

NEW ZEALAND POLICE

On the papers

Judgment:      26 April 2010

JUDGMENT OF MALLON J

[1]      Mr R   was issued with an infringement notice for driving a vehicle on a road at a speed exceeding 100 km per hour.  There was a procedural irregularity by the Justices of the Peace as a result of which, for reasons set out in my judgment of

22 October 2009, I set aside Mr R  ’ conviction on that notice and ordered a rehearing.

[2]      Mr R   now seeks leave to appeal to the Court of Appeal on the basis that the outcome should have been as per the decision in R   v Police HC Rotorua CIV-

2004-463-0015, 17 March 2005.  In that case, in similar circumstances as that which arose here, Cooper J quashed the orders made by the Justices of the Peace without ordering a rehearing.

[3]      Mr R   contends that I did not have his supplementary submissions dated

17 October 2009 at the time of hearing the appeal, and that I should have ignored the Crown’s supplementary submissions dated 16 October 2009 when considering the appeal.   He submits that if I had ignored the Crown’s supplementary submissions then the outcome would have been as per the outcome in the appeal before Cooper J.

I do not agree.

R V NEW ZEALAND POLICE HC WANG CRI-2009-483-000026  26 April 2010

[4]     There was nothing unfair about the Court considering the Crown’s supplementary submissions.    The  Crown  had  initially submitted  that  the  appeal should be dismissed.   In the supplementary submissions the Crown advised that it had reviewed the position and now realised that Mr R   was correct that there had been a procedural error.  It submitted that the appropriate outcome was to set aside the  conviction  and  order  a  rehearing.    Those  supplementary  submissions  could equally have been made orally at the hearing.   The Crown is not confined to its original written submissions.   This is particularly the case when I had determined that Mr R  ’ appeal was to be allowed.  Had the Crown not filed its supplementary submissions I would still have sought the Crown’s submissions (orally) as to the appropriate orders.

[5]      There was no unfairness in respect of Mr R  ’ supplementary submissions dated 17 October 2009 either.   Those submissions criticised the Crown’s failure initially to realise that he was correct about the error in procedure before the Justices of the Peace.   They then noted the Crown’s concession in the supplementary submissions and then submitted that the outcome should be as per the judgment of Cooper J.  Whether those submissions made it to me prior to the hearing is not now clear.  But Mr R  ’ submission that the outcome should be as per the judgment of Cooper J was certainly made at the hearing before me, and was the focus of the hearing in light of the Crown’s concession that Mr R  ’ appeal ought to be allowed.

[6]      This Court was not required to reach the same outcome as that which Cooper J reached on the appeal that was before him.  Whether a rehearing is to be ordered in this case was a matter for me.  I formed the view that a rehearing should be ordered for the reasons advanced by the Crown.  To agree with one side’s submissions is not to “simply rubber stamp” the Crown’s submissions as Mr R   contends.

[7]      The application for leave to appeal is dismissed.

Mallon J

Solicitors:

L Rowe, Armstrong Barton, Wanganui, [email protected]

Copy to: Mr R