Telke v Police - [2019] NZHC 279

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2018-476-000008

[2019] NZHC 279

BETWEEN
JESSE ROBERT TELKE

Appellant

AND

POLICE

Respondent

AND

JOSHUA DOUGLAS MARTIN

Defendant

Hearing: 26 February 2019

Appearances:

J R Telke (Appellant) in person H V Bennett for Respondent No appearance for Defendant

Judgment:

26 February 2019

ORAL JUDGMENT OF OSBORNE J

Introduction

[1] Jesse Telke appeals an order of Judge J E Maze made on the 18th of July 2018 (the confiscation order) whereby a Holden motor vehicle with registration no. APA788 (the vehicle) was ordered confiscated.

[2] The vehicle was at the time of the confiscation order registered in the name of Joshua Martin. Mr Martin pleaded guilty to a charge that he had on the 12th of July 2018 driven the vehicle on a road while his breath alcohol level exceeded the statutory limit.

TELKE v POLICE [2019] NZHC 279 [26 February 2019]

[3] In the absence of any ground of hardship raised under s 129(4) of the Sentencing Act 2002, Judge Maze was obliged because of Mr Martin’s offending background to make the confiscation order pursuant to s 129(3).

This appeal

[4]Mr Telke appeals the confiscation order on the grounds that:

(a)he did not own or have an interest in the vehicle at the time the offence was committed by the defendant;

(b)he bought the car from the defendant on the 12th of July 2018, although he did not change the registered ownership until the 18th of July 2018; and

(c)confiscation of the vehicle would cause undue hardship to him, he having incurred significant cost in buying the vehicle.

The jurisdiction

[5] Section 129EA(1) of the Act permits a third party to appeal a confiscation order in prescribed circumstances:

129EA Appeal against confiscation by third party

(1) If the court orders the confiscation of a motor vehicle under section 128, 129, or 129A, a person (other than the offender or, as the case may be, the substitute for the offender) may, within 20 working days after the date of the order, or within any further time that the appropriate court allows, appeal to the appropriate court against the order on the ground that the confiscation is causing, or will cause, undue hardship to the appellant or any other person (other than the offender or, as the case may be, the substitute for the offender).

[6] For the Police, Ms Bennett submits that, given the absence at the time of the sentence hearing of any evidence or submissions as to ownership issues and hardship, it is appropriate that the Court deals with this appeal de novo. I accept that such an approach is appropriate in this case.

The evidence

The vehicle’s ownership history

[7] On this appeal, Mr Telke has given evidence himself. He was briefly cross- examined by Ms Bennett. I found Mr Telke’s evidence to be straightforward and frank. He was a credible witness. Ms Bennett responsibly has not suggested otherwise.

[8] The…

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 Telke v Police

Details

AGLC: Telke v Police [2019] NZHC 279
Case: [2019] NZHC 279
Decision Date: 26 February 2019

CaseChat Overview and Summary

Jesse Telke has appealed a confiscation order made by Judge J E Maze on 18 July 2018, in which a Holden motor vehicle was ordered confiscated. The vehicle, registered as APA788, was at the time registered in the name of Joshua Martin. Martin had pleaded guilty to driving the vehicle while his breath alcohol level exceeded the statutory limit on 12 July 2018. Telke argues that he did not own or have an interest in the vehicle at the time of the offence, having bought it from Martin on 12 July 2018, and that confiscation of the vehicle would cause undue hardship. The High Court was required to determine whether the confiscation order was appropriate given the timing of ownership transfer and whether Telke could appeal the order under the Sentencing Act 2002.

The court found that the confiscation order was inappropriate because the ownership of the vehicle had transferred from Martin to Telke before Martin's sentencing on 18 July 2018. This was based on the evidence that Martin intended to permanently dispose of his ownership of the vehicle to Telke on 12 July 2018. Given this transfer of ownership, the court concluded that the confiscation order would not have been made if the evidence had been presented at the time of sentencing. As a result, the appeal was allowed, and the confiscation order was quashed. The court did not need to consider the undue hardship argument raised by Telke.

Orders