Stewart v Police
[2019] NZHC 603
•26 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2018-404-433
[2019] NZHC 603
BETWEEN MELVIN STEWART
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 March 2019 Counsel:
A Speed for Appellant
D Wiseman for Respondent
Judgment:
26 March 2019
Reasons:
27 March 2019
REASONS JUDGMENT OF DUFFY J
[on adjournment]
This reasons for judgment was delivered by me on 27 March 2019 at 3.00 pm.
Registrar/ Deputy Registrar
Solicitors/Counsel:
Andrew Speed, Barrister, Auckland Crown Solicitor, Auckland
STEWART v NEW ZEALAND POLICE [2019] NZHC 603 [26 March 2019]
[1]This appeal was adjourned to a date to be fixed by the registry.
[2] The appellant, Mr Stewart, brings an appeal under s 296 of the Criminal Procedure Act 2011 (CPA). He is currently facing a charge of dangerous driving in the District Court. The appeal relates to a decision of Judge Taumaunu where he refused to dismiss this charge.
[3] The Judge was asked to dismiss the dangerous driving charge because it had been substituted for a charge of common assault. This substitution happened some 17 months after the incident which has given rise to the charge. It is common ground that a charge of dangerous driving must be laid within a six-month limitation period. Accordingly, it would not be possible to lay a fresh charge of dangerous driving so long after the incident.
[4] Relying on authorities under the former legislation Mr Stewart argues that it was wrong in principle for the Judge to substitute the charge of common assault with dangerous driving when the latter charge could not be laid against him by reason of the limitation period.1
[5] The merits of the issue on appeal are readily understood. However, there is a difference in the way Mr Stewart and the Police regard the procedural mechanism that was applied by the Judge, which in turn impacts on the appeal right.
[6] In his decision the Judge refers to Mr Stewart’s application as one brought under s 147 of the CPA.2 The Police treated the appeal as one brought against a refusal to dismiss under s 147 of the CPA. Accordingly, the police have argued that it is not possible to bring an appeal under s 296 of the CPA against a refusal to dismiss a charge under s 147 of that Act.
[7] On the other hand, Mr Stewart maintains that he did not make his argument for dismissal under s 147 of the CPA. He contends that the dangerous driving charge is a nullity (because it is outside the limitation period) and should be dismissed for that
1 See Cunningham v Police AP 36/93 unreported decision High Court Tauranga Registry; and see discussion in R v Holt CA59/06 30 May 2006.
2 See [27] of Police v Stewart [2018] NZDC 25938.
reason. He says a decision on that type of application is not one that is to be made under s 147 of the CPA, the focus of which is whether on the available evidence a reasonably directed jury could convict.
[8] Until the procedure that was followed in the District Court is properly identified it is not possible for this Court to determine whether there is jurisdiction to entertain the appeal. This may require obtaining a transcript of the hearing before Judge Taumaunu in order to learn how the application was framed before him. If it was not framed as a s 147 application, it may be that the Judge has erred in dealing with it on this basis.
[9] It appeared to be common ground before me that there is difficulty appealing a refusal to dismiss under s 147 of the CPA.3
[10] In Watson v Clarke this Court discussed the District Court’s inherent power to control its process including to dismiss proceedings.4 My reading of Watson v Clarke suggests to me that Judge Taumaunu could have heard and determined Mr Stewart’s application for dismissal of the dangerous driving charge using the District Court’s inherent power to prevent abuse of its processes. The alleged abuse here would be a prosecution based on a time barred charge.
[11] However, the question would then be whether a pre-trial refusal to exercise the inherent power to dismiss a charge as an abuse of process would give rise to a right to appeal under s 296 of the CPA.
[12] Because Mr Stewart’s complaint was about the substitution of the dangerous driving charge for common assault, there was discussion before me about whether the decision to permit the substitution was the proper decision to appeal. This decision was made in May 2018. However, the Police correctly pointed out that any appeal against that decision would now be out of time, unless leave to appeal out of time were granted.
3 In this regard see D (CA716/2015) v R [2016] NZCA 190; Rowell v Commissioner of Inland Revenue [2016] NZCA 471; and Lincoln v Police [2017] NZHC 2153.
4 Watson v Clarke [1990] 1 NZLR 715.
[13] The other procedural mechanism for challenging the outcome of the Judge’s decision would be judicial review. In Auckland District Court v Attorney-General the Court of Appeal upheld a decision of this Court which recognised that a decision by a District Court Judge to dismiss a charge under s 347 of the Crimes Act 1961, which was the former provision equivalent to s 147 of the CPA, was susceptible to judicial review.5 Because judicial review has no limitation period in the way an appeal does Mr Stewart could pursue a challenge by judicial review against the decision to allow the substitution and the refusal to dismiss the substituted charge.
[14] If Mr Stewart is correct in regarding the dangerous driving charge as an abuse of process and a nullity because its time limitation precludes it being substituted for another charge outside the limitation period there may be good reason for this Court to act now to prevent the prosecution going ahead. Otherwise, Mr Stewart would have to go through a Judge alone trial and then to appeal any resulting conviction.
[15] However, this Court can only intervene at the pre-trial stage if a jurisdictional pathway is apparent. It was for this reason that I adjourned the appeal. Both counsel agreed on this course of action. An adjournment will enable the parties to identify the appropriate jurisdictional pathway, if any, that the Court can then follow.
Duffy J
5 Auckland District Court v Attorney-General (1992) 9 CRNZ 344.
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