Sealey v Police

[2012] NZHC 120

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000118 [2012] NZHC 120

PETER SEALEY

Appellant

v

POLICE

Respondent

Counsel:         P J Doody for Appellant

T J Mackenzie for Respondent

Judgment:      10 February 2012

JUDGMENT OF HON JUSTICE FRENCH

Introduction

[1]      Much to his surprise, Mr Sealey received a notice from the District Court advising that the Court had ordered him to enter into a bond to keep the peace.

[2]      Mr Sealey was unaware that any application had been made to require him to enter into such a bond, and he was not present when the order was made.

[3]      He now appeals on the grounds that the Judge had no jurisdiction to make the order, and that he should have been given an opportunity to be heard.

[4]      For their part, the police concede that the appeal should be allowed.

SEALEY V POLICE HC CHCH CRI-2011-409-000118 [10 February 2012]

[5]      In order to save Mr Sealey any further costs, the parties have asked me to deal with the matter on the papers.

Factual background

[6]      On 1 December 2010, Mr Sealey made a complaint of assault to the police against his neighbour, Mr Northcott.  According to Mr Sealey’s version of events, he was confronted in his driveway by Mr Northcott brandishing a stick and shouting that he was sick of Mr Sealey.  Mr Sealey, who was refuelling a car from a petrol canister at the time, threw petrol at Mr Northcott.   Mr Northcott then eye-gouged Mr Sealey and hit him with the stick.

[7]      The  incident  occurred  against  the  background  of  a  long-running  dispute between the two neighbours.

[8]      Police   charged   Mr Northcott   with   assault   with   a  weapon   and   being unlawfully in a yard.

[9]      Mr Northcott pleaded not guilty to those charges.

[10]     On  30  May  2011,  there  was  a  status  hearing.     Mr Northcott  was  in attendance, as required by the terms of his bail.

[11]     The  presiding  Judge  decided  to  take  a  pragmatic  approach.    The  Judge indicated that rather than have a defended hearing, he was mindful to deal with the matter by ordering both Mr Northcott and Mr Sealey to enter into a bond to keep the peace.

[12]     Mr Northcott agreed to this course of action on the basis that both would be required to enter into a bond.

[13]     Mr Northcott was then sworn and gave evidence.  His version of events was to the effect that it was he who had been assaulted by Mr Sealey, and any actions he took were in self-defence. He also claimed that Mr Sealey had provoked the incident by deliberately shining lights into the Northcott’s residence.

[14]     Mr Sealey was not present, and Mr Northcott was not cross-examined.

[15]     The Judge then directed that bonds issue to both men.  A sum of $500 was set, to be payable in the event of any breach.

[16]     Mr Northcott was discharged without conviction.

[17]     Finally, for completeness in this recital of the background facts I should add that, although Mr Sealey was not a defendant, he does nevertheless have a right of appeal under s 115(1)(b) of the Summary Proceedings Act 1957, being a person against whom an order has been made.

Discussion

[18]     The jurisdiction to bind to the peace is derived from ss 186, 187 and 188 of the Summary Proceedings Act.

[19]     The effect of the sections is that an application by complaint must be made to the Court by a complainant before an order can be made.   The only exception is under s 188 where a defendant has been charged with an offence and the evidence establishes one of the grounds which would justify the making of an order.[1]   In those circumstances, the Judge can make the order as if an application had been made.

[1] The grounds are set out in Summary Proceedings Act, s 186.

[20]     Section 188 would thus justify the making of the order against Mr Northcott notwithstanding the absence of an  application  by Mr Sealey.    But  it  would  not authorise the making of an order against Mr Sealey, because he was not a defendant. An application by Mr Northcott was required.

[21]    Counsel argue there was no application, and therefore the Judge lacked jurisdiction.

[22]     It is correct that Mr Northcott did not use the statutory form of complaint contained in schedule 2 of the Summary Proceedings Act, but what he and his lawyer

said at the status hearing was in effect an application.  Section 204 of the Summary

Proceedings Act makes it clear that my concern should be substance, not form.[2]   The absence of the correct form, in my view, does not of itself invalidate the Judge’s order.

[2] Section 204 states “No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.”

[23]     Where I consider counsel are on stronger ground is in relation to the fact that Mr Sealey was never given an opportunity to be heard.   Yet, the decision was a decision that was adverse to him.  The making of the order was thus clearly a breach of s 27 of the New Zealand Bill of Rights Act 1990, and a breach of natural justice. For that reason, the order cannot stand.

[24]     A further argument raised by counsel was that Mr Sealey’s absence meant there was an insufficient evidential basis for the order, and hence the Judge had no jurisdiction.   Some support for that analysis can be found in Williams v Police.[3]

However it is unnecessary for me to reach a definitive view on that issue because of the approach I have taken regarding the breach of natural justice.

Outcome

[3] Williams v Police (1999) 17 CRNZ 682.

[25]     The order was made by the Judge with the best of intentions.  However, for the reasons discussed above, the appeal must be allowed and the order quashed.

[26]     I have considered whether there should be a rehearing on the grounds that Mr Northcott only agreed to enter into the bond on the basis that Mr Sealey would be doing likewise.  However, the police did not seek a rehearing and the matter, while important to the two protagonists is not, in my view, sufficiently serious to warrant a

rehearing.  Mr Northcott has been treated fairly.