Raue v Police

[2012] NZHC 3529

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-435-000004 [2012] NZHC 3529

KATHERINE RAUE

v

NEW ZEALAND POLICE

Hearing:         18 December 2012

Counsel:         Ms K Raue (in person) I R Murray for Crown

Judgment:      19 December 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 10.00am on the 19th December 2012.

JUDGMENT OF WILLIAMS J

[1]      The  appellant  was  convicted  of  wilful  trespass  in  the  District  Court  on

12 September 2012.  The matter was originally to be heard on 4 July 2012 but the Crown applied for an adjournment – according to Ms Raue because the prosecuting sergeant had been a friend of Ms Raue’s in the past and disclosed a conflict of interest.

[2]      The trespass notice upon which the charges were laid was allegedly served on the appellant on 4 March 2011.  It related to the Mobile Carterton Service Station at

KATHERINE RAUE V NEW ZEALAND POLICE HC WN CRI-2012-435-000004 [19 December 2012]

191-207  High  Street,  Carterton.    Service  was  effected  by  Constable  Dallinger. Ms Raue advised that this was the day she was arrested on other matters (unrelated to this trespass) and it was at that point that Constable Dallinger said he served the notice.

[3]      The allegation was  that despite the notice the appellant appeared on  the forecourt at 6.50pm on 27 October 2011 wanting an LPG bottle filled.

[4]      Ms Raue did not appear to defend the charges.  The Judge indicated that he was  satisfied  that  the  appellant  was  aware  of  the  hearing  date.    The  hearing proceeded  by  way  of  formal  proof  pursuant  to  s 61(b)(i)  of  the  Summary Proceedings Act – the charge being a non-electable offence and the proof being by way of oral evidence.

[5]      The District Court accepted the evidence and convicted Ms Raue fining her

$300 together with court costs at $132.89 all payable at $5 per week.

[6]      Among the many submissions made by the appellant before me, two were in my view relevant.

[7]      The first was that the appellant had mistakenly believed the hearing was on

19 September (rather than the 12th) and had written to her then lawyer (Mr Hard) and

(she  said)  the  court,  indicating  that  she  could  not  attend  a  hearing  until  after

21 September as she was house sitting in Hawkes Bay.  She provided me with copies of emails to that effect.   They were not easy to follow but there do appear to be various communications with Mr Hard – after he had withdrawn from the case – directing him to advise the court that she could not attend on the assigned day. There is similar correspondence to the Legal Services Agency.  Ms Raue advised that there were other emails to similar effect that could not now be retrieved and there were telephone communications to counsel.

[8]      The second matter was that the appellant denied that Constable Dallinger ever served her with a trespass notice on 4 March while she was custody.   She

pointed to the fact that when she was transferred from the police station to remand at Arohata Women’s Prison, there is no record of any such notice in her possession at any stage.

[9]      I am satisfied that the appellant had an argument to make, and that she had taken steps to ensure that she could attend the defended hearing in order to make it. I am satisfied that it would be unjust now for the Crown to be able to rely on the formal proof in the District Court in this case.

[10]     I note that there is no criticism here of the Judge who proceeded under s 61 of the Summary Offences Act.  He had no notice of the appellant’s attempts to have the matter set down on a date during which she would be in Masterton.

[11]     The appeal must be allowed accordingly.  The decision of the District Court is quashed and the matter is remitted back to that court for rehearing.

Williams J