S v Police HC Wellington Cri-2009-485-12

[2009] NZHC 626

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-000012

BETWEEN  S

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 May 2009

Appearances: S Insley for Appellant

D La Hood for Respondent

Judgment:      26 May 2009

ORAL JUDGMENT OF GENDALL J

[1]      I  am  delivering  these  oral  remarks  and  adjourning  this  appeal  sine  die, following upon my discussions with counsel as to the Court’s views on the proper way of dealing with the appellant’s concerns.

[2]      The appellant was convicted of assaulting a constable acting in the execution of his duty and disorderly behaviour in the District Court at Porirua on 16 February

2009.  The conviction in fact occurred on 12 February 2009 and he was sentenced four days later on 16 February and ordered to undertake 40 hours’ community work on the charge of assault and he was convicted and discharged on the charge of disorderly conduct.   He brings this appeal on the basis that he was not present inadvertently and without fault when the case was heard and formal proof given by the prosecution.

[3]      I do not need to deal with the background facts or allegations, which led to the convictions being entered.  The appellant has filed two affidavits, which have not

S V NEW ZEALAND POLICE HC WN CRI-2009-485-000012  26 May 2009

been subject to cross-examination, but in which he asserts certain circumstances, which he says, provided a defence available to him.

[4]      The  prosecution  history  is  not  entirely  irrelevant.     The  appellant  first appeared on 11 March 2008.  There were at least 17 remands over the following year before a final fixture was set for 12 February 2009.  Other fixtures had been vacated through the appellant’s non-appearance and indeed, on 12 September 2008 a warrant was issued for his arrest.  Some other defended hearings could not proceed because of the unavailability of counsel.

[5]      So it is not surprising that Judge T J Broadmore determined that he would proceed on 12 February 2009 when the appellant did not arrive at 10.00am.   The Judge considered that he should proceed by way of formal proof under s 61 of the Summary Proceedings Act and that was to occur later that day at 2.15pm.  That left Ms Insley, counsel for Mr S  , in a difficult position as she had attended with a view to conducting a defended hearing, but her client was not there.   She sought leave to withdraw and this was granted.  Later formal proof was given and it was not surprising that the appellant was convicted.

[6]      The  basis  upon  which  the  appeal  is  presented  was  that  a  substantial miscarriage of justice occurred and the conviction should be quashed because it was entered in the absence of the appellant.  Counsel in her submissions contends that the defences involved issues of mens rea, reasonableness and whether the police were acting in the execution of their duty at a time when the alleged assault occurred.

[7]      The appellant has sworn two affidavits, the second which asserts the facts, he says, which provide him with a defence.   The initial affidavit explains the circumstances he says, which prevented him attending Court.   He said he did not have a landline or mobile phone and was unable to contact the Court or Ms Insley when he was delayed for domestic reasons.  He said that upon arrival at Court:

“I looked around for my lawyer but could not find her so I tired to find out what was going on.  I saw Constable Pat Meyer, one of the Court Attendants, in the foyer and he advised me that my case was over with and that my lawyer had gone.  Based on that advice I then

left the Court  unaware  that  my case  was  proceeding by way of formal proof at 2.15pm.”

[8]      I interpolate here that Mr La Hood on behalf of the respondent does not take issue with that evidence.  As I have said, Mr S   in his second affidavit says that he was innocent and wished to give evidence to contradict that of the police.

[9]      There is no doubt that Judge Broadmore was perfectly entitled to exercise his powers under s 61 and after entering the convictions he issued a warrant for the arrest of the appellant.  That warrant was executed and the appellant was sentenced on 16 February 2009.  Ms Insley was not his counsel on that date but I am advised that the duty solicitor represented him.

[10]     It has not been explained to the Court by Mr S   or anyone else what had happened in the intervening three days and why the appellant, with or without the duty solicitor’s assistance, did not apply to the District Court for a rehearing.  It was clearly   an   option   that   had   been   alluded   to   by   both   the   prosecution   and Judge Broadmore, because His Honour said:

“When  he  starts  getting  chased  up  for  it…he  might  still  apply  for  a rehearing.”

[11]     That is what should have happened because a District Court Judge may grant a rehearing under s 75 of the Summary Proceedings Act 1957.  Naturally, this Court can remit a matter back to the District Court for a rehearing under its general powers pursuant to s 121(1) of the Summary Proceedings Act.  But to do so in my view the Court must still allow the appeal and quash the conviction and I am not satisfied that that is the proper step to take at this stage.

[12]     In the two affidavits that Mr S   has sworn he claims what his defence is to the assault charge but does not depose as to his defence to the disorderly behaviour charge.  I do not think it is enough for an appellant on an appeal to tender affidavit evidence maintaining innocence.  A Court, of course, may receive affidavit evidence on appeal and will do so in order to ensure that a miscarriage of justice does not arise.

[13]     As I have signalled to counsel, I think the proper approach is for the appellant to apply with the assistance of Ms Insley to the District Court for a rehearing.  He can then present such sworn evidence as he wishes.  No doubt, it may be along the lines already tendered, although I would suspect it could need to be rather more expansive, especially as to why nothing was done between 12 and 16 February.  He would  be  available  to  be  cross-examined  in  the  District  Court  if  the  police prosecution wished to do so.  Of course the police may consider it necessary for the District Court to make a properly informed decision to tender evidence itself.  The prosecution however might even consent to an order for rehearing and the matter can then be dealt with properly on a defended basis in the District Court with all the evidence being adduced.  But I observe that if Mr S   makes out the grounds that he advances now then there should be very little doubt that a rehearing ought to be granted by the District Court.  But if Mr S   has not made out the grounds then of course the application for rehearing would be dismissed.   The appeal could then proceed if he wishes and be disposed of on its merits as they now stand.

[14]     I think that is the proper way to dispose of the matter.   So the appeal is neither declined nor granted, but I adjourn it sine die to be brought on if need be.

J W Gendall J

Solicitors:

S Insley, Porirua for Appellant
Crown Solicitor, Wellington for Respondent