R v Rudd

[2014] NZHC 2949

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2014-070-4170 [2014] NZHC 2949

THE QUEEN

v

PHILLIP HUGH RUDD

Hearing:	26 November 2014
Counsel:	GC Hollister-Jones for Crown PG Mabey QC and KR Gravatt for Defendant
Judgment:	26 November 2014

JUDGMENT OF BREWER J

Solicitors:               Ronayne Hollister-Jones Lellman (Tauranga) for Crown

Sharp Tudhope (Tauranga) for Defendant

Counsel:                 Paul Mabey QC

R v RUDD [2014] NZHC 2949 [26 November 2014]

Introduction

[1]      Mr Rudd appears in this Court because he was charged with an offence that can be dealt with only by this Court.   He appears also on other charges which normally would be dealt with by the District Court.  Those charges are here because they had to accompany the more serious charge.

[2]      However,  the  more  serious  charge  has  been  withdrawn  leaving  only the charges which normally would, and should, be dealt with by the District Court.  The issue for me is whether I have the power to transfer them to the District Court.

Background

[3]      Mr Rudd was charged with attempting to procure murder, threatening to kill and possession of methamphetamine and cannabis. Attempting to procure murder1 is a Category 4 offence as defined in s 6 of the Criminal Procedure Act 2011 (“the Act”).  It can be tried only in the High Court.

[4]      Threatening to kill2 is a Category 3 offence (the maximum sentence is seven years’ imprisonment).  Possession of methamphetamine3 is a Category 2 offence (the maximum sentence is six months’ imprisonment plus a fine), as is possession of cannabis4 (the maximum sentence is three months’ imprisonment plus a fine).

[5]      Having been charged with these offences, Mr Rudd was brought before the District  Court  at  Tauranga  on  6  November  2014.    As  the  Act  required,5   the proceeding (i.e. all the charges) was transferred to the High Court.  The prosecutor then withdrew the charge of attempting to procure murder.  The remaining charges do not have any of the features which, pursuant to the Court of Trial Protocol, would identify them as Category 2 or 3 offences covered by the protocol and in respect of

which a High Court Judge must determine the level of trial court.6   In other words, if

1      Crimes Act 1961, s 174.

2      Section 306.

3      Misuse of Drugs Act 1975, s 7(1)(a) and (2).

4      Section 7(1)(a) and (2).

5      Criminal Procedure Act 2011, s 36(2).

6      Sections 66-68.

it had not been for the charge of attempting to procure murder, these remaining charges would have stayed in the District Court.

[6]      Mr Hollister-Jones for the Crown and Mr Mabey QC for Mr Rudd are agreed that the District Court is the appropriate Court for these remaining charges.  I concur. The problem is that the Act does not have a specific provision enabling me to transfer the charges to the District Court.

Do I have the power to transfer the charges to the District Court?

[7]      The remaining charges accompanied the attempting to procure murder charge to this Court through the operation of s 139(1)(b) of the Act.  This provides that if a prosecutor has notified  the Court proposing that two or more charges  be heard together, and one charge is to be tried in the High Court, all charges must be tried in the High Court.

[8]      I assume that the prosecutor proposed to the District Court Judge that all the charges be heard together.  That is why the Judge sent all the charges to this Court. But the statutory basis for doing that no longer exists.  Section 139(1)(b) reads:

… if 1 charge is to be tried in the High Court, all charges must be tried in the

High Court.

[9]      The intention of Parliament is plain.  It is to prevent related charges being the subject of separate trials in different Courts due to some charges being less serious than others.

[10]     In my view, there is no reason to read s 139 as having only a preliminary effect.  I read it as having continuing application.  So long as one charge is to be tried in the High Court, all charges must be tried in the High Court.  But if that is not the case, and it is not the case here, then the charges do not have to be tried in the High Court.

[11]     I am satisfied that the charges which Mr Rudd now faces would be better dealt with in the District Court.   The District Court has jurisdiction and, because none of the charges are protocol offences, it should exercise that jurisdiction.

Section 183(1) provides:

If  a  proceeding  is  transferred  to  a  court,  but  the  court  to  which  it  is transferred is not the correct court, the court to which the proceeding is transferred may transfer the proceeding to the appropriate court.

[13]     It is evident that this section is intended to catch errors but it is wide enough

– if read purposively – to cover this situation.7    At the time this proceeding was transferred, the High Court was the correct Court.   But it is no longer the correct Court in the sense that, save for the transfer, jurisdiction on the remaining charges would vest in the District Court.   The section uses the present tense, “is”.   I am prepared to read it as speaking in the present and not referring only to a past incident. So, the phrase “is not the correct court” includes the meaning “is not  now the correct court”.   This is consistent with the Court’s role in interpreting enactments to fix problems not foreseen when legislation was enacted, so long as that interpretation does  not  usurp  Parliament’s  policy-making  function.     As  Clifford J  notes  in Transpower  New  Zealand  Ltd  v  Commerce  Commission  while  summarising  the

position of Cooke P in Northland Milk Vendors:8

As Cooke P observed in Northland Milk Vendors, the Courts will also try to make enactments work by filling gaps in a statutory scheme in a manner consistent with statutory purpose, and in doing so will have to have regard to legislative statements of purpose. But the Courts must not usurp Parliament’s policy-making function. The Courts must therefore be satisfied as to Parliament’s intention before acting in that way.

7      Section 5(1) of the Interpretation Act 1999 requires that the meaning of an enactment must be ascertained  from  it  text  and  in  light  of  its  purpose. As  Tipping  J  observes in  Commerce Commission v Fonterra Co-operative Group Ltd [2007] 3 NZLR 767 (SC) at [22] even an apparently plain meaning must be “cross-checked” against purpose:

‘It is necessary to bear in mind that s 5 of the Interpretation Act 1999 makes text and purpose the key drivers of statutory interpretation. The meaning of an enactment must be ascertained from its text and in the light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5. In determining purpose the Court must obviously have regard to both the  immediate  and  the  general  legislative  context.  Of  relevance  too  may  be  the  social, commercial or other objective of the enactment.’

8      Transpower New Zealand Ltd v Commerce Commission HC Wellington CIV-2011-485-1032,

4 November 2011 at [17]. See Northland Milk Vendors Association Inc v Northern Milk Ltd

[1988] 1 NZLR 530 at 537.

Bill9 states that one of the purposes of the bill is that it:10

… reduces unnecessary delay and inefficiency of court processes.

[15]     I am satisfied that the above interpretation is pragmatic in its effect and accords with the statutory purpose of the Act and Parliament’s evident intent that a proceeding should not stay locked in a Court which is not the correct, or appropriate, Court to try it, merely because it was transferred to that Court.

[16]     If I am wrong in interpreting s 183(1) in this way, I would hold nevertheless that my inherent power to regulate the process of this Court in the interests of justice allows me to fill a lacunae in a procedural statute where to do so is in evident accord with the overall intention of Parliament.11   Parliament intended that Category 2 and Category 3 charges be tried in the District Court unless they are protocol offences for which an order has been made by a Judge of the High Court determining that they be tried in the High Court.  The exception that if one charge in a proceeding must be tried in the High Court then all charges must be tried in the High Court is to prevent

unnecessary and duplicative trials.

Result

[17]     I direct that the remaining charges be transferred to the District Court at Tauranga.  The District Court is to resume jurisdiction.  The charges will be called in the District Court at Tauranga at 10:00 am on 2 December 2014.

[18]     There are issues of name suppression.  These issues should be dealt with in the District Court also since it is the Court of jurisdiction.  I extend the interim name

suppression orders made by Judge Bidois to 2 December 2014.

9      The Criminal Procedure Bill was one of the Bills created out of the Criminal Procedure (Reform and Modernisation) Bill during the Committee stage.

10     Criminal Procedure (Reform and Modernisation) Bill (243-1) (explanatory note) at 1.

11     A Court may exercise its inherent powers to regulate its own procedure; to ensure fairness in investigative and trial procedures; and to prevent an abuse of its process. So long as the exercise of an inherent power is not inconsistent with statute or the rules of court, the courts should be guided by

pragmatism and necessity. See Rosara Joseph, “Inherent Jurisdiction and Inherent Powers in New Zealand”

(2005) 11 Canta LR 220 at 234 citing R v Accused (CA 32/91) [1992] 1 NZLR 257 (CA); R v

Bloomsbury and Marylebone County Court [1976] 1 WLR 326 at 365; Commissioner of Police v

Ombudsman [1988] 1 NZLR 385 (CA) at 399.

Brewer J