Underhill v Police
[2015] NZHC 2789
•3 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-37
CRI-2015-404-38 [2015] NZHC 2789
BETWEEN WAYNE UNDERHILL
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: On the papers Appearances:
Appellant in person
J Murdoch for RespondentJudgment:
3 December 2015
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on 3 December 2015 at 10:30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Meredith Connell, Auckland
Copy to:
Appellant
UNDERHILL v NEW ZEALAND POLICE [2015] NZHC 2789 [3 December 2015]
[1] Mr Underhill seeks leave of the High Court to appeal against a decision of Judge Dawson in the District Court, in which he dismissed an appeal brought by Mr Underhill against a decision of Justices of the Peace in relation to parking infringements.1 His appeal appears to be brought as an appeal against conviction.
[2] Under s 237 of the Criminal Procedure Act 2011 (the Act), a convicted person may, with leave of a second appeal court, appeal to that court against the determination of the person’s first appeal. Leave will only be granted if the High Court is satisfied that: 2
(a) The appeal involves a matter of general or public importance; or
(b) A miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[3] The High Court may determine whether an oral hearing is appropriate or whether an application for leave to appeal can be determined on the written material provided to the Court.3 Such a decision must be made in writing, with reasons, and be provided by the Registrar to the parties. By minute of 25 June 2015, I directed that the hearing of Mr Underhill’s application for leave to appeal should be heard on the papers. I also made various timetable orders relating to the provision of submissions. I have accordingly received and considered submissions from both parties.
District Court decision
[4] Judge Dawson’s decision is dated 10 February 2015.4 The decision is prefaced by two identification numbers, CRI-2014-004-011728 and CRI-2014-004-
011729. The informant is said to be the New Zealand Police. The decision commences by noting that Mr Underhill was appealing the decision of Community Magistrates with respect to charges of failing to display a parking fee receipt and
parking in excess of the maximum time in a pay and display area. Judge Dawson
1 New Zealand Police v Underhill [2015] NZDC 1844.
2 Criminal Procedure Act 2011, s 237(2).
3 Criminal Procedure Act 2011, s 328.
4 New Zealand Police v Underhill, above n 1.
then notes that Mr Underhill challenges the decision of the Community Magistrates on the basis of jurisdiction. Judge Dawson concludes that, in his view, Mr Underhill was advancing arguments that the District Court could not take into account. He said that the District Court was bound by the Acts of Parliament and also by the many decisions of the High Court bearing on the matter. He found there was no basis for the appeal, and it was dismissed accordingly.
[5] The District Court file received in the High Court is incomplete, but it appears that the chronology is as follows:
19 April 2010 An infringement notice P7570734 was issued at 12.33 pm on
19 April 2010 by Auckland Transport and served on the defendant as owner of a vehicle registration number TL7722
by attaching it to his vehicle. The infringement notice
alleged that on 19 April 2010 at Waterloo Quadrant Auckland Central the defendant being the person in charge of TL7722 failed to display inside or on the vehicle a pay and display parking receipt that showed that the fee payable had been paid for the entire time that the vehicle was parked in the area, being an offence against Clauses 25.15.5(c) and
25.15.8 Auckland City Traffic Bylaw 2006.
19 April 2010 An infringement notice P7570757 was issued at 3.49 pm on
19 April 2010 by Auckland Transport and served on the defendant as owner of the vehicle registration number TL7722 by attaching it to his vehicle. The infringement notice alleged that on 19 April 2010 at Waterloo Quadrant Auckland Central the defendant being the person in charge of TL7722 failed to remove the vehicle parked in excess of the maximum time declared for the pay and display area, being an offence against Clauses 25.15.5(e) and 25.15.8
Auckland City Traffic Bylaw 2006.
7April 2014 Auckland Transport served a reminder notice in respect of both alleged offences on the defendant by ordinary post. The defendant via notice in writing signed by him and delivered to Auckland Transport requested a hearing in respect of the alleged offences. The defendant did not in that notice admit liability in respect of the alleged offences.
20 May 2014 A notice of hearing was issued directing that the matters be heard in the Auckland District Court at 1.15 pm on 9 June
2014. CRN numbers 14004367839 and 14004367840 were allocated to the two alleged offences.
9June 2014 Both matters adjourned by Justices of the Peace, Selwyn L Haworth and Gill Cord to 14 July 2014.
14July 2014 Following a hearing in the Auckland District Court before Justices of the Peace B K Stephen-Smith and M B Philcox, both offences were found proven. The defendant was ordered to pay $40 on CRN 14004367839 and ordered to pay $40 and Court costs of $30 on CRN14004367840. Despite a number of requests of the District Court, the decision of the Justices of the Peace has not been provided.
29 July 2014 The defendant filed a notice of general appeal dated 25 July
2014 in the Auckland District Court against the decision of the Justices of the Peace dated 14 July 2014. The CRI
number noted by the defendant on the notice of general
appeal was CRI-2014-004-004322. The Court allocated a further identification number, CRI-2014-004-011724 to the
appeal.
10 February 2015 The appeal was heard and determined by Judge Dawson.
The defendant appeared in person while the informant is shown as represented by S Maleviya.
10 February 2015 The defendant filed a notice of application for leave to appeal in the High Court against the decision of Judge Dawson dated 10 February 2015.
[6] As noted above, the decision of Judge Dawson is prefaced by two identification numbers, CRI-2014-004-011728 and CRI-2014-004-011729. The latter number was allocated by the District Court to the appeal against the decision of Justices of the Peace to find two parking infringement offences proven. The former number refers, however, to two entirely separate infringement notices relating to traffic offences alleged to have occurred on 5 March 2010, six weeks prior to the parking infringement offences. The chronology relating to these offences is as follows:
5 March 2010 An infringement notice 8641935 was issued on 5 March 2010 and served by hand on the defendant. The infringement notice alleged that on 5 March 2010 at Auckland the defendant being the driver of a vehicle on a road did make a right turn contrary to a traffic sign prohibiting such a manoeuvre, being an offence against s 40 Land Transport Act 1998 and r.4 Offences and Penalties Regulations 1999 and 3.1(1) Road User Rules
2004.
5 March 2010 An infringement notice also said to be numbered 8641935 was issued on 5 March 2010 and served on the defendant personally. The infringement notice alleged that on 5 March
2010 at Auckland the defendant failed to produce his driver’s licence for inspection without delay after being required to do so by an enforcement officer, being an offence against s
31(1)(c) Land Transport Act 1998.
9April 2014 The police served a reminder notice in respect of both alleged offences on the defendant by ordinary post. The defendant via notice in writing signed by him and delivered to the police requested a hearing in respect of the alleged offences. The defendant did not in that notice admit liability in respect of the alleged offences.
28April 2014 A notice of hearing was issued directing that the matters be heard in the Auckland District Court at 1 pm on 5 June 2014. CRN numbers 14004114105 and 14004114106 were allocated to the alleged offences.
5 June 2014 Both matters adjourned by Justices of the Peace, P A King and
B K Stephen-Smith to 29 July 2014.
29July 2014 Following a hearing in the Auckland District Court before Justices of the Peace C Davis and E Mead, both matters were found proven. The defendant was ordered to pay $150 with Court costs of $30 on CRN14004114105 and $55 with Court costs of $30 on CRN14004114106. The decision of the Justices of the Peace has been transcribed and is available.
29 July 2014 The defendant filed a notice of general appeal dated 29 July
2014 in the Auckland District Court against the decision of the Justices of the Peace dated 29 July 2014. The CRI number noted by the defendant on the notice of general appeal was CRI-2014-004-003780. This same number appears on the decision of the Justices of the Peace. The Court allocated a further identification number CRI-2014-004-11728 to the appeal.
10 February 2015 The appeal was heard and determined by Judge Dawson. The defendant appeared in person while the informant is shown as represented by S Malaviya.
10 February 2015 The defendant filed a notice of application for leave to appeal in the High Court against the decision of Judge Dawson dated
10 February 2015.
Discussion
[7] I am of the view that major difficulties arise from the District Court processes. First, the decision of the Justices of the Peace in relation to the parking infringement offences is not available. This Court therefore has no information about the basis of, or the reasons for, the decision by the Justices of the Peace. In the notice of general appeal filed in the Auckland District Court on 29 July 2014, the defendant specified his grounds of appeal as follows:
The Magistrates relied on paragraph [39]. An examination of these cases reveals the following principles:
[a], [b], [c], [d] and [e], but not paragraph [f] as this reveals the error.
[8] In his decision of 10 February 2015, Judge Dawson makes no reference to any decision or paragraph of any decision. There is also a technically insignificant error in that the informant is referred to as the New Zealand Police when it is in fact Auckland Transport.
[9] A more major difficulty is that Judge Dawson’s decision also appears to determine the appeal against the traffic infringement offences because it is prefaced by the CRI number CRI-2014-004-11728, which was the number allocated by the Auckland District Court to the traffic infringement offences. Judge Dawson does not, however, make any reference to the traffic infringement offences. He has, however, written on the Court record in respect of both traffic infringement offences.
10/2/15 Appeal dismissed.
[10] I had delayed this judgment in the hope that further material would be made available from the District Court, but despite their best endeavours, staff have been unable to locate any further material. In those circumstances, I am of the view that leave should be granted for a second appeal on the basis that a miscarriage of justice may occur unless the appeal is heard.
[11] As to the substantive merits of the appeal, it will be difficult to sensibly determine these because of the incomplete nature of the District Court file. Firstly, the decision of the Justices of the Peace in respect of the parking infringement offences is not available. Secondly, the decision of Judge Dawson on appeal makes absolutely no reference to the traffic infringement offences. In those circumstances, the appeal is allowed.
[12] Although in the normal circumstances I would remit the matters to the District Court for rehearing, there has been a substantial delay since the infringement notices were issued in March and April 2010. There have already been numerous Court appearances. It would not be in the interests of justice for the matters to be retried after so many years. There will accordingly be no order for rehearing.
……………………………….
Woolford J
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