S v R CRI 2006-419-89 HC Hamilton

[2010] NZHC 1291

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-000089

S

Applicant

v

THE CROWN

Respondent

Hearing:         17 March 2010

Appearances: J S   in Person

R G Douch and J N Foster for Respondent

Judgment:      17 March 2010

(ORAL) RULING OF ANDREWS J [Application to adjourn hearing]

Solicitors:

Almao Douch, PO Box 19173, Hamilton 3244

Party:

Mr J K S  , PO Box 120, Hamilton 3240

S V R HC HAM CRI 2006-419-000089  17 March 2010

[1]      Mr S   has applied for adjournment of the hearing of his application for a stay of enforcement proceedings in respect of a reparation order made in the course of his sentencing by Heath J on 21 November 2006.

[2]      In support of the application for adjournment, Mr S   first noted that he had received the summons in respect of non-payment of reparation, a Minute of Heath J dated 4 February 2010, and a memorandum of the Crown Solicitor dated 18

December 2009 from the Court bailiff on 1 March 2010.

[3]      The grounds for his seeking an adjournment are set out in his application for adjournment as being that: -

a)        The  Crown  submissions  are  not  made  by  an  impartial  Crown

Solicitor.

b)The Crown Solicitor has not advised the Court of his presumptive and apparent bias.

c)        The Court has a responsibility under natural justice to not accept the

Crown submissions made.

d)The recent issue of Justice Heath’s recuse consideration cannot be heard as the Crown (who is to present arguments) is most likely to be the author of Justice Heath’s current predicament.

e)        It is in the interests of justice and preserving the integrity of the

Court and its process to adjourn the hearing.

[4]      At the beginning of Mr S  ’s submission I asked him whether it was not the case that my earlier ruling, in respect of Mr S  ’s Habeas Corpus application (in which I ruled that the Court could not exclude the Crown Solicitor at Hamilton from  appearing  on  that  application),  would  similarly  apply  to  Mr  S  ’s application for adjournment.[1]      Mr S   advised me that the present application for adjournment relies on different facts.  He advised that in making his application to exclude the Crown Solicitor at Hamilton from appearing on the Habeas Corpus application he relied on allegations of conduct that occurred prior to his trial.  The

present application, he says, relies on matters in respect of the Crown Solicitor and his office during the course of his trial.  Those matters, he said, are the subject of an complaint to the New Zealand Law Society.

[1] See S   v The Official Assignee HC Hamilton CIV 2010-419-246, Oral Ruling, 17 March

2010.

[5]      In  going  through  the  affidavit  filed  in  support  of  his  application  for adjournment Mr  S    set  out the  detail  of his  allegations  against  the Crown Solicitor.  These are that the Crown Solicitor misled the Court at trial and that he tendered false evidence.

[6]      Like  the  other  allegations  made  in  Mr  S  ’s  complaint  to  the  New Zealand Law Society, those matters are still under investigation.  However, because of those complaints and his allegations against the Crown Solicitor at Hamilton, Mr S   submitted that this hearing should be adjourned.  I assume that would be so that a different Crown Solicitor could appear on the matter.

[7]      The application for adjournment is opposed by the Crown.   In submissions Mr Douch referred to, and asked that I take into consideration, the submissions he made with respect to Mr S  ’s application that the Crown not appear on the Habeas Corpus matter.  Secondly, Mr Douch submitted that while the facts alleged by Mr S   did not require analysis in the context of this application, it was to be observed that Mr S   had appealed against conviction to the Court of Appeal for which he had retained Senior Counsel.  Mr Douch submitted that the matters referred to by Mr S   had been canvassed in the Court of Appeal and the appeal had been dismissed with no criticism of the prosecutor.  Mr Douch also submitted that there had been no appeal against sentence.   It is of course sentence with which we are concerned today.

[8]      Next, Mr Douch submitted that the fact that the New Zealand Law Society has not, as Mr S   put it, dismissed the claim as being “frivolous and vexatious”, does not mean that it is to be assumed that there is substance to the complaint.  Mr Douch submitted that every complaint to the New Zealand Law Society is dealt with seriously.

[9]      Finally, Mr Douch addressed the issue as to whether it is in the interests of justice to grant an adjournment.  He noted that this is a Court-driven process, not one instigated by the Crown.  It has been initiated by the presentation of a report from the bailiff concerning his attendance on Mr S   in relation to the matter of reparation payment.  That report was referred to the sentencing Judge, Heath J, who directed

that the report be provided to the Crown Solicitor.   The Crown responded with a memorandum  suggesting  a  process  available  under  the  relevant  sections  of  the Crimes Act 1961 (ss 19C, 19D, and 19DA).   Those included that a hearing be convened.  That hearing has been convened for today.  Mr Douch submitted that Mr S   has identified no reason why an inquiry should not be made in this hearing into his non-payment of the reparation order.

[10]     In his submissions in response Mr S   strongly challenged Mr Douch’s submission that the matters he had referred to had been canvassed in the Court of Appeal.   He submitted that the Court of Appeal had not, in fact, dealt with those matters.

[11]     I cannot conclude that it is in the interest of justice to grant the adjournment that has been sought.   The matter of Mr S  ’s non-payment of reparation is before the Court today as a result of the report filed by the bailiff in 2009.   Whether or not the Crown Solicitor at Hamilton should, or should not, appear on the matter is not  a  matter  that  this  Court  is  to  be  concerned  with.    The  Crown  Solicitor  at Hamilton was the prosecutor when Mr S   was before the Court.  Mr Douch is still the Crown Solicitor at Hamilton and retains the warrant to that effect.  Further, there is to be representation by Ms Foster who, equally, is employed by the Crown Solicitor and has the appropriate practising certificate.

[12]     While there may be a complaint still before the New Zealand Law Society, those complaints have not resulted in any interim restraint on the practice of either Mr Douch or Ms Foster and until such time as they are resolved, should they be resolved in Mr S  ’s favour, there is no reason why Mr Douch and Ms Foster cannot appear.

[13]     There  appear  to  be  no  other  grounds  on  which  Mr  S    seeks  an adjournment and accordingly the application for adjournment is declined.

Andrews  J