Summers v Police

[2012] NZHC 1688

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-488-29 [2012] NZHC 1688

NEAL ALAN SUMMERS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 July 2012

Appearances: Appellant in Person

M Jarman-Taylor for Respondent

Judgment:      13 July 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 13 July 2012 at 2:50 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

N Summers, C/- Kaikohe Hotel, 67 Broadway, Kaikohe

M Jarman-Taylor, Crown Solicitor, Whangarei:  [email protected]

SUMMERS V NEW ZEALAND POLICE HC WHA CRI-2012-488-29 [13 July 2012]

[1]      A Segway  Personal  Transporter  (“Segway  PT”)  is  a  self-balancing  two- wheeled electric powered device for carrying a standing person.  Is a Segway PT a motor vehicle?    Judge Davis  answered,  “Yes”  in  a reserved  decision  issued  on

26 April 2012,  after  a  defended  hearing  in  the  District  Court  at  Kaikohe  on

23 March 2012.

[2]      As a consequence, Mr Summers was “convicted” of infringement offences which had charged him with operating an unregistered motor vehicle on a road; driving a motor vehicle along a footpath; using an unregistered motor vehicle on a road; and operating a private vehicle on a road when the vehicle was not displaying current evidence of vehicle inspection.  On 4 May 2012, the appellant was ordered to pay fines of between $150 and $200 in respect of each of the seven infringement offences, and court costs of $132.89 on one of them.

[3]      Mr Summers now appeals against his convictions and the orders and seeks a rehearing.

[4]      The grounds of appeal are that:

(a)       the Court wrongly refused the appellant’s request for an adjournment

of the 23 March 2012 hearing;

(b)the  evidence  was  insufficient  or  inadequate  to  justify  finding  the appellant guilty of the infringement offences;

(c)       the Court failed to have regard to all of the relevant evidence; and

(d)      the Judge misapplied the law to the facts of the case.

[5]      It is properly conceded by Ms Jarman-Taylor for the Crown that convictions should not have been entered when the appellant was found guilty of infringement offences.[1]   On that basis, the convictions must be set aside.

[1] Summary Proceedings Act 1957, s 78A; Hall v Ministry of Transport [1991] 2 NZLR 53 (CA) at

58.

[6]      That does not dispose of the appeal, however, because, having found the appellant guilty of the infringement offences, the appropriate course was for the Judge to order the defendant to pay such fine and costs, or make such other orders, as the Court would be authorised to order or make on convicting the appellant.[2]  In this case the Judge imposed fines and made a costs order to which the appellant objects.

[2] Section 78A(1).

[7]      It is appropriate to address first the appellant’s application for a rehearing on the grounds that he should have been granted an adjournment.

[8]      In  hearing  and  determining  a  general  appeal  brought  under  s 115  of  the Summary Proceedings Act, the Court is empowered by s 121(1) to make such order in relation to the appeal as it thinks fit.  This includes exercising such powers as the Court from whom the appeal is brought may have exercised.[3]    Ms Jarman-Taylor submits that the appropriate course on appeal is to consider whether the Court should exercise such powers as may have been available to the District Court to correct any irregularity in the proceeding for an infringement offence.[4]   I accept that that is a proper approach.

[3] Section 121(6).

[4] Section 78B(1)(a)(iii).

[9]      The question posed by Ms Jarman-Taylor, however, is whether the refusal of the District Court to grant the adjournment sought by the appellant amounts to an irregularity which occurred in the procedures leading up to the orders for the fines and costs.

[10]     The power of the District Court to adjourn a hearing is provided by s 45(1) of the Summary Proceedings Act as follows:

45       Power to adjourn

(1)      The hearing of any charge may from time to time be adjourned by the Court to a time and place then appointed.

....

[11]     A Registrar of the Court also has the power to grant an adjournment of the hearing of any charge in certain circumstances, as follows:

45A     Power of Registrar to adjourn

(1)      A Registrar may, upon application, adjourn the hearing of any charge to a time and place then appointed if—

(a)      The  defendant  is  not  in  custody  at  the  time  of  the application; and

(b)      The application is made before the commencement of the hearing.

....

[12]     There  is  nothing  on  the  Court  file  to  indicate  when  the  adjournment application was refused or whether it was refused a Judge or by the Registrar.

[13]     Ms Jarman-Taylor  referred  me  to  David  Bell  Distributors  v  Police[5]   as authority for the proposition that a refusal to grant an adjournment in summary proceedings is not appealable under the right of general appeal, although it may be subject to an application for review under the Judicature Amendment Act.  But in the present case, the appeal would not be against the refusal to grant the adjournment (in respect of which Grieg J in David Bell Distributors  was undoubtedly right) but against the orders made as a consequence of the hearing which ensued.   On that basis, this Court would be entitled to consider a sentence or order imposed to be unsafe, and to justify a rehearing, if an unreasonable decision to refuse an adjournment resulted in the defendant not receiving a fair hearing.   Ms Jarman- Taylor properly accepted that to be the case.

[5] David Bell Distributors v Police HC Palmerston North AP22/98, 21 April 1998.

[14]     The background to the adjournment application is important.   Infringement notices  were  issued  against  the  appellant  in  respect  of  alleged  offending  on

31 March 2011, 13 May 2011 and 14 June 2011.  In a letter dated 19 July 2011, the appellant requested a Court hearing under s 21 of the Summary Proceedings Act and the matter was given a status hearing on 25 October 2011.  At that hearing, Judge Davis identified the issues to be determined and directed that a firm fixture would need to be set for the matter.

[15]     The reason the Judge directed a firm fixture was that the appellant had told him that there were likely to be witnesses flown in from Segway USA by Segway New Zealand, the distributors of the Segway PT device in this country.

[16]     In his Minute following the status hearing, the Judge correctly identified that a key issue to be determined at the hearing of the infringement notices was whether a Segway PT was a motor vehicle or a mobility device for the purposes of the Land Transport Act or the Land Transport Regulations.   If a mobility device, the user would be exempt from the obligations the Act and regulations upon the users of motor vehicles, and the appellant would have a complete defence to the charges he faced.

[17]     This  was,  and  is,  a  matter  of  great  importance  to  Mr  Summers  who  is partially disabled as a result of a motor vehicle accident in 1990.  Although he had a total knee replacement in 2009, he suffers chronic pain and can walk only short distances.  He uses the Segway PT for mobility and will be seriously disadvantaged if he cannot continue to use it as a mobility device under the exemption provided.

[18]     According to the evidence provided to the District Court, there are some

79 people in New Zealand who use Segway PTs as mobility devices.  Such use by disabled persons is apparently more common in the United States where they were invented.   Serious inconvenience and expense would be caused to New Zealand users of Segway PTs if the law was to regard them as motor vehicles.

[19]     For these reasons, the Judge recognised that the matters at issue would be of interest not only to Segway USA and Segway New Zealand, but also to New Zealand Disabilities.   He urged the appellant to instruct counsel to attend on the Court on

18 November 2011  so  that  preliminary  matters  could  be  properly  ironed  out  in anticipation of the defended hearing date being fixed.

[20]     It seems the appellant did not engage counsel.   On 18 November 2011, the

Court  determined  that  a  firm  fixture  for  the  hearing  would  be  allocated  on

23 March 2012.

[21]     By letter dated 9 March 2012, the Police disclosed copies of the infringement notices  and  notices  of  hearing;  the  summary of facts;  the  driver history of the appellant; a photograph booklet; and four witness briefs. The witness briefs included a two-page brief of evidence to be given by a Mr Uprichard of the New Zealand Transport Agency, presumably on the basis that he was qualified to give expert opinion evidence about the Segway PT and its classification.  It was his opinion that the Segway PT was a motor vehicle.

[22]     There is nothing on the file to indicate why the Police did not provide the appellant with a disclosure package containing its evidence until only 14 days prior to the firm fixture date.  It may have followed usual protocols in doing so, but that left Mr Summers only two weeks to prepare his case in response on a key issue of great importance to him and scores of other disabled people.

[23]     On  21 March 2012,  Mr  Summers  sought  an  adjournment  by  way  of memorandum,  his  grounds  being  the  late  disclosure  of  Mr Uprichard’s  brief  of evidence and an assertion that his expert would need six weeks to prepare his own brief.  I was informed by Ms Jarman-Taylor that the Police opposed the adjournment application, emphasising that the appellant had been aware for some time of the intention of the prosecution to call an expert from Land Transport New Zealand to prove that a Segway PT is a motor vehicle for the purposes of the Act and the Regulations.

[24]     The appellant’s assertion that his expert would need six weeks to prepare his brief was based a letter, received prior to the 18 November 2011 hearing, from the Managing  Director  of  Segway  New  Zealand  Limited,  a  Mr Bendall,  who  is  a qualified mechanical engineer.  Mr Bendall explained that in January 2012 he would

be travelling to the United States for a scheduled meeting of international Segway distributors and that he would have the opportunity there to discuss technical matters directly relevant to the case with the Chief Executive of Segway, Inc. and with engineers from that company.  Mr Bendall explained that it could be necessary for Segway New Zealand to have various tests, performed locally on a Segway PT, which were potentially complex and could necessitate construction of special test- bed equipment.   He thought the full testing process could take four to six weeks, because an  independent engineer and  their associated technical  resources would likely be required.  It was on the assumption of those requirements that Mr Bendall suggested that he could not have the necessary materials and evidence available for the appellant until April or May 2012.

[25]     There is some force in Ms Jarman-Taylor’s submission that the appellant should not have agreed to a hearing date of 23 March 2012 when he had been told his expert’s evidence would not be available until April or May.  But Mr Summers was acting without the assistance of counsel and I am prepared to accept that the unwisdom of his acceptance of the fixture should not weigh against him.

[26]     Bearing in mind the onus on the informant to prove his case, it seems to me to be inevitable that any expert witness called by the appellant would not be in a position to prepare a suitable brief of evidence until after he or she had received, and could respond to, the evidence to be led by the prosecution.  I do not doubt that any counsel acting for Mr Summers would have insisted on a sequential exchange of evidence.

[27]     There is nothing on the Court file to explain why what I consider to be a reasonable request for an adjournment was refused.  Considering the importance of the issue of whether a Segway PT came within the definition of “motor vehicle”, not only for the cases brought against the appellant but also generally, it is difficult to see why a new hearing date should not have been allocated.   There was no pressing urgency for the conduct of a hearing on the scheduled date, although I accept that Mr Summers is seriously inconvenienced at present by the uncertainty as to his ability to use his Segway PT as a mobility device.

[28]     Ms Jarman-Taylor points out that an appeal against a refusal to grant an adjournment is an appeal against the exercise of a discretion, and that the appellant must point to some error on the part of the decision-maker.[6]  That principle, however, can have little application where the basis for the decision is not known.

[6] Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]; May v May (1982) 1 NZFLR 165 (CA) at 170.

[29]     The failure of the Police to provide the appellant with adequate notice of their expert evidence, and the refusal of an adjournment by the Court, seriously undermined the appellant’s ability to advance his principal (indeed, on the facts, his only) defence.  I consider they were serious irregularities in the procedures leading up to the fines and costs order.

[30]     For those reasons, the convictions, the fines and the costs order made against the appellant are set aside.   The infringement offence notices are remitted to the District Court for rehearing.   By agreement between Mr Summers and counsel for the respondent, the District Court proceedings are transferred to Whangarei.   The notices shall be given a first call on 8 August 2012 so that arrangements for the hearing can be made.  The Registrar of the Whangarei District Court is requested to ensure that half-an-hour is set aside on that day for the Judge to hear from counsel and make appropriate timetabling and fixture orders.

[31]     In light of the decision I have reached, it is inappropriate that I should express any views on the merits of the prosecution, but there are clearly arguable grounds for resisting the proposition that the Segway PT is a motor vehicle.  Ms Jarman-Taylor also acknowledged that any opinion evidence proffered at the rehearing needs to be properly qualified as admissible under s25 of the Evidence Act 2006, and that an orderly regime for the exchange of proposed expert evidence should be put in place.

[32]     I record that, given the importance of the matters at issue to the appellant and others  including  Segway  New  Zealand,  and  the  apparent  complexities  of  the technical evidence and the legal issues arising, I advised the appellant that he will

remain at a considerable disadvantage if he does not obtain legal assistance for the

purposes of the rehearing.  Mr Summers indicated that he would be in a position to engage counsel.   It also seems to me that the Court would be assisted if counsel appeared for the informant but that, I accept, is a matter for the Police to decide.

[33]     It is desirable that, a reasonable time before 8 August 2012, there should be co-operative discussions between prosecution and defence about the future conduct of the case.

..............................................

Toogood J