Seiuli v Police - [2012] NZHC 2673

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000079 [2012] NZHC 2673

VALASI SEIULI
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 11 October 2012

Appearances: S Boele for appellant
T J Mackenzie for respondent

Judgment: 11 October 2012

ORAL JUDGMENT OF CHISHOLM J

[1] This is an appeal against a conviction for driving whilst forbidden to do so which resulted in the appellant being convicted and discharged. She seeks a discharge without conviction. Two primary grounds are advanced: first, the prosecutor failed to consider whether the appellant should be diverted; and, secondly, the Justices failed to provide a fair opportunity for the appellant to state her case before sentence was passed.

Background

[2] Some of the background information that follows comes from an affidavit filed in support of this appeal, for which leave is sought. There is no opposition to

SEIULI V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000079 [11 October 2012]

the application for leave to adduce further evidence, and the application is granted accordingly.

[3] Ms Seiuli is a university student of Samoan descent. At the relevant time she was 20 years of age. She was living with her aunty; her mother, father and three siblings having just moved to Australia.

[4] On 17 May 2012 she was stopped by Police and warned to obtain a licence before she drove again. Six days later she was stopped again and charged with failing to comply with a lawful direction. Her explanation was that when she was caught the second time she was dropping off material relating to a university assignment. There is no evidence of poor driving on either occasion.

[5] In due course Ms Seiuli received a Notice to the Defendant from the Ministry of Justice. The notice directed her to complete and return the form to the District Court as soon as possible. She was asked to tick one of four listed options. She ticked the option which states:

I may be eligible for the Police Adult Diversion scheme and wish to explore this option. (To find out whether you are eligible you must attend Court on the date of hearing and speak with a Police Prosecutions Service representative).

The other three options referred to situations where the defendant wished to plead not guilty; wished to plead guilty to the charge and appear before the Court; or wished to plead guilty to the charge and not appear in Court.

[6] On 8 August 2012 Ms Seiuli went to the Court with her uncle. By this time she had obtained a licence and had the licence with her. A counter attendant directed Ms Seiuli and her uncle were directed to the police prosecutor.

[7] At this point it is appropriate to pick up the narrative from the affidavit of

Mr Fidow, Ms Seiuli’s uncle:

3. THERE I spoke with the police prosecutor before the court hearing
began. I showed him VALASI’S driving license.

4.I asked the police prosecutor whether there was any way of avoiding a conviction. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Seiuli v Police

Details

AGLC: Seiuli v Police [2012] NZHC 2673
Case: [2012] NZHC 2673
Decision Date: 11 October 2012

CaseChat Overview and Summary

In this case, Valasi Seiuli, a student of Samoan descent, appealed against her conviction for driving while forbidden to do so. The conviction resulted in her being convicted and discharged. Seiuli sought a discharge without conviction, arguing that the prosecutor failed to consider whether she should be diverted, and that the Justices failed to provide a fair opportunity for her to state her case before sentence was passed. The court was required to determine whether the procedural misunderstandings in the case warranted the vacation of the plea and whether the sentence imposed should stand.

The court found that the process had run off the rails due to a series of misunderstandings. Firstly, Seiuli and her uncle were entitled to think that diversion would be considered when they attended court. Secondly, it seemed that diversion was not considered by the prosecutor. Although the failure to consider whether there should be diversion is not for the court to review, the point for present purposes was that the failure to address the diversion issue added to the confusion of the people who were obviously not familiar with the court process. Thirdly, Seiuli was sentenced before she had an opportunity to make any submissions in mitigation. This probably arose from the delay before her uncle was able to indicate to the Justices that he was seeking a discharge without conviction on her behalf. However, it did give rise to a significant breach of Seiuli's right to be heard before sentence was imposed.

The court found that the procedural misunderstandings in the case were not cured by the Justices' reconsideration of the matter after they had heard from Seiuli's uncle and that the case came within the "exceptional" category. The court vacated the plea and, applying the three-step approach in R v Hughes, was satisfied that there should be a discharge without conviction in this case. The gravity of the offending was at the bottom of the scale, especially given that Seiuli had obtained a licence and there was no suggestion of safety issues. The direct or indirect consequences of a conviction would be out of proportion to the gravity of the offending.

The appeal against conviction was allowed, and the conviction was quashed. Seiuli was discharged without conviction.

Orders