Underhill v Police

[2015] NZHC 2740

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-34 [2015] NZHC 2740

BETWEEN

WAYNNE UNDERHILL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 November 2015
Appearances:	Appellant in person R Annandale for Respondent
Judgment:	6 November 2015

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on 6 November 2015 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Crown Solicitor, Whangarei

UNDERHILL v NEW ZEALAND POLICE [2015] NZHC 2740 [6 November 2015]

Introduction

[1]      On   29   July  2015,   Judge   Duncan   Harvey   dismissed   the   defendant’s application for a rehearing.1     The defendant now appeals against Judge Harvey’s decision.

Factual background

[2]      On 6 September 2013, an infringement notice was issued by the Police and served  by  post  on  the  defendant.    The  infringement  notice  alleged  that  on  1

September 2013 at Whangarei the defendant committed an offence against s 79Q(a) Land Transport Act 1998 in that he failed to produce, on demand by an enforcement officer and without delay, a current log book.

[3]      The defendant by notice in writing signed by him and delivered to the Police requested a hearing in respect of the alleged offence.  The defendant did not in that notice admit liability and, accordingly, a  notice of hearing was issued directing the defendant to attend the Whangarei District Court at 10 am on 7 November 2013. The matter subsequently proceeded by way of formal proof on 18 December 2013 in the absence of the defendant.  The charge was found proven and the defendant was convicted and fined $400 and ordered to pay court costs of $130.

[4]      The defendant appealed to the High Court.  For reasons it is not necessary to canvass, Moore J allowed the appeal on 20 October 2014, and directed that the matter be remitted to the District Court for rehearing.2

[5]      On 17 April 2015, the matter again proceeded by way of formal proof in the absence of the defendant.   The charge was found proven and the defendant was convicted and fined $500 and ordered to pay court costs of $130.  Later that same day, the defendant made an application for rehearing which eventually came before Judge Harvey on 29 July 2015.3    The defendant was present on this date.   After hearing from the police prosecutor and the defendant, Judge Harvey dismissed the

defendant’s application for a rehearing.

1      New Zealand Police v Underhill [2015] NZDC 14737.

2      Underhill v New Zealand Police [2014] NZHC 2558.

3      New Zealand Police v Underhill, above n 1.

[6]      In his decision, Judge Harvey recorded:

[2]       His Honour Judge Davis gave directions that there was to be an application for a rehearing.  Evidence in support to be filed no later than, the date is difficult to read but I believe it is 15 July.  The police were to respond by 18 July 2015 and a decision would be made on that date, that date being of course today.

[7]      Judge Harvey went on to make reference to s 125(7)(b) of the Criminal

Procedure Act 2011 (the Act), which provides:

(7)       The Court may order a retrial of a charge if —

…

(b)   Regardless of whether the defendant had a reasonable excuse for non-attendance, the court is satisfied that the defendant had a defence that would have had a reasonable prospect of success if he or she had attended the trial.

[8]      Judge Harvey concluded as follows:

[16]     The section [s 125(7)(b)] provides that if the application is on that basis, and clearly here it is, there must be an outline of the defence on which the defendant intends to rely and a formal statement from each witness who the defendant intends to call.  Copies of those documents must be served on the prosecutor.   That of course is precisely what His Honour Judge Davis was referring to when he adjourned the matter on 29 May.  Mr Underhill has explained why he was not present on the day, but he has not now or at any time earlier outlined for the Court what his defence would be.   In those circumstances, in law I have no power to grant a rehearing.  The application is refused.

Discussion

[9]      There are two difficulties with Judge Harvey’s decision.   First, there is an alternative basis on which the defendant could rely.   Section 125(7)(a) of the Act provides:

(7)       The Court may order a retrial of the charge if —

(a)      The Court is satisfied that —

(i)        The defendant was notified of the trial and had a reasonable excuse for non-attendance at the trial, but that reasonable excuse was not known to the Court at the time of the trial; and

(ii)      It is in the interests of justice;

[10]     The defendant has never specified that his application was on s 125(7)(b) of the Act.  Judge Harvey assumed that it was the basis of his application.  However, the defendant could equally rely on s 125(7)(a) of the Act.  If he relies on s 125(7)(a) of the Act, there is no requirement to demonstrate to the Court that he has a defence that would have had a reasonable prospect of success if he had attended Court on

17 April 2015 when the matter proceeded (for the second time) by way of formal proof in his absence.

[11]     A second difficulty with Judge Harvey’s decision is that Judge Davis was not in fact referring to evidence to be filed by the defendant showing that he had a defence that would have had a reasonable prospect of success if he had attended Court on 17 April 2016.  Judge Harvey apparently relied on a handwritten note made by Judge Davis on the record of hearing in which he stated:

Application for re-hearing & evidence in support to [be] filed & served by

1/7/15.   Police to respond by 18/7/15.   Decision as to rehearing will [be]

made on that date.

[12]     Judge Davis had in fact dictated a minute to which I have had reference.  It appears that Judge Harvey did not have the minute before him when he dismissed the defendant’s application for rehearing. The minute records:

[4]       At risk of adding to Mr Underhill’s woes I am going to make the following directions.  He is to file and serve an affidavit explaining why he was late to Court on the police within 14 days. That will then give the police the opportunity to check out whether this rally took place or whether Mr Underhill was simply late to Court.   If he was late to Court I take the view that he has no automatic rights to a re-hearing.  If there were these delays which were extraordinary then I may well entertain the re-hearing but I simply do not take the view that Mr Underhill can please himself as to when and where he comes to Court.  The final decision as to whether or not there will be a re-hearing will be made after that affidavit has been filed and served.  Do you understand what you have to do? [Yep]

[5]       I am going to make the following directions, you will be remanded at large to 29 July, the application for a re-hearing and the evidence in support is to be filed and served by 1 July 2015, that is filed in Court and served on police. The police are to respond by 18 July 2015 where there will be a decision as to the re-hearing be made on that date.  It is not to say there will be a re-hearing, it will be the decision as to whether you will get one or not on that date.

[13]     It is obvious from the minute that Judge Davis did not direct Mr Underhill to file evidence of a defence that would have had a reasonable prospect of success if he had attended Court on 17 April 2015 in terms of s 125(7)(b).  It seems that Judge Davis was focussed on s 125(7)(a) and looking at the question whether the defendant had  a  reasonable  excuse  for  non-attendance  at  Court  on  17  April  2015.    In accordance with the direction of Judge Davis, the defendant later that day filed a statutory declaration dated 29 May 2015 which has been witnessed by a Registrar of the Whangarei District Court in which he explained why he was late to Court.   It seems to me that the defendant has therefore complied with the directions of Judge Davis.  The Police were directed to respond by 18 July 2015.  There is, however, no response by the Police on file.

[14]     Because Judge Harvey proceeded on a mistaken view of the directions made by Judge Davis, his decision of 29 July 2015 cannot stand.  The appeal is therefore allowed and the matter remitted to the District Court once again for re-hearing of the defendant’s application for a re-hearing.  The defendant just wants his day in Court so he can put forward his defence to the infringement notice.

……………………………….

Woolford J