W v Police HC Auckland CRI 2010-404-83

[2010] NZHC 1210

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-83

BETWEEN  W

Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         16 July 2010

Counsel:         Z Mohamed for Applicant

P Singh for Respondent

Judgment:      16 July 2010

(ORAL) JUDGMENT (NO 2) OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Counsel:

Z Mohamed, PO Box 39 119, Howick, Auckland

W V NEW ZEALAND POLICE HC AK CRI 2010-404-83  16 July 2010

Introduction

[1]      Mr W   seeks leave to appeal to the Court of Appeal against my judgment of 8 June 2010.   Although Mr W   was successful in an appeal against conviction on a charge of driving with an excess blood alcohol concentration, I decided to remit the information for rehearing in the District Court.  The point Mr Mohamed, for Mr W  , takes is that I erred in exercising my discretion in that way.  He submits that I ought simply to have quashed the conviction.

The law

[2]      The  circumstances  in  which  leave  to  appeal  to  the  Court  of  Appeal  in summary cases should be granted is set out in s 144(2) of the Summary Proceedings Act 1957:

144  Appeal to Court of Appeal

…

(2)    A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its  general  or  public  importance  or  for  any  other  reason,  ought  to  be submitted to the Court of Appeal for decision.

....

Only if this Court were to refuse leave, can the Court of Appeal be asked directly to allow a second appeal to be brought: see s 144(3).

[3]      The basic proposition is that a second appeal should only be granted if one of the qualifying circumstances set out in s 144(2) is made out.   In R v Slater,[1]  the Court of Appeal, reviewing the comparable provisions of s 144(3), identified three components:

[1] R v Slater [1997] 1 NZLR 211 (CA) at 215.

a)        Is there a qualifying question of law?

b)Is  the  question  one  which  by  reason  of  its  general  and  public importance or for any other reason ought to be submitted to the Court of Appeal?

c)       Is the Court from which leave is being sought, of opinion, that the question ought to be so submitted?

[4]      It is clear that s 144(2) was not intended to provide a general second tier of appeal from decisions of the District Court in proceedings under the Act.  For that reason, it is important to focus carefully on the component parts of s 144(2).

Analysis

[5]      The circumstances in which Mr Mohamed submits I erred in exercising my discretion are, I accept, unusual.

[6]      Mr W   was first convicted of the offence with which he was charged on 15 August 2008.  He appealed against that conviction, on the sole ground that his rights  under  s 23(1)(b)  of  the  New  Zealand  Bill  of  Rights  Act  1990  had  been breached.  In a judgment given by this Court on 28 November 2008, that appeal was allowed and the information was remitted for hearing in the District Court.   The Judge who allowed the appeal limited the issues to be reheard in the District Court.

[7]      That rehearing took place on 31 July 2009 and, again, Mr W   was convicted.  He appealed against that conviction.  It was drawn to my attention during the appeal hearing that there was no power for this Court to remit an information for rehearing on specific issues.  Rather, s 131(2) of the Act required remission to be on the basis that “the case shall be dealt with as if a rehearing as to the whole matter had been granted”.

[8]      I  took  the  view  that  the  District  Court  decision,  notwithstanding  that  it followed what was required by this Court’s judgment, was fundamentally flawed

because  Mr W    did  not  have  the  opportunity  of  raising  all  issues  he considered appropriate.

[9]      I then considered whether to remit the information for rehearing or to set aside the conviction.  I determined on the former approach, taking the view that the seriousness of the offence and the nature of the objection were determinative factors in exercising that discretion.[2]   I noted that one factor was that, on the evidence before the District Court, both the breath and blood alcohol concentration limits were exceeded.  The issue turned on what occurred before either test was undertaken.

[2] W   v Police HC Auckland, CRI 2010-404-83, 8 June 2010 at paras [13] and [14].

[10]     Mr Mohamed has framed questions for the consideration of the Court of Appeal having regard to that background.  Rather than setting them out verbatim, I attempt to summarise them as follows:

a)       Did this Court properly exercised its discretion to order a rehearing, in a case in which the District Court Judge had embarked upon a hearing on a wrong basis and without jurisdiction?

b)Did I exercise my discretion properly, having regard to the “null and void” nature of the hearing before the District Court on the second occasion?

c)       Was I was entitled to “correct” the earlier High Court decision by directing a further rehearing, once it was discovered that the earlier decision was erroneous?

d)       Was my power to remit for a rehearing was so unfettered that this

Court could order rehearings any number of times?

[11]     The Court’s jurisdiction to order a rehearing is set out in s 131(1) of the Act:

131     Power of High Court to direct rehearing of information or complaint

(1)   On any appeal the High Court may remit the determination appealed against  to  the  District  Court  with  a  direction  that  the  information  or complaint to which it relates be reheard.

....

[12]     The  circumstances  in  which  that  discretion  might  be  exercised  were considered by French J in Ranapia v Police.[3]    In that case, Her Honour was faced with a submission that a rehearing would be unjust.   Among other factors put to French J was the unfairness of subjecting the appellant to another hearing having regard  to  the  inevitable  costs,  delay,  stress  and  time  that  would  be  involved, especially when he was not at fault for the error.[4]     That is a point on which Mr Mohamed places some weight.

[3] Ranapia v Police HC Christchurch CRI 2008-409-207, 30 March 2009.

[4] Ibid, at para [30](c).

[13]     French  J  held  that  each  case  turns  on  its  own  facts.    The  overriding consideration in the exercise of the discretion will be which of the statutory courses is best calculated to meet the interests of justice in the particular case.[5]   I agree with that approach and believe that was the approach I took in my decision.

[5] Ibid, at para [33].

[14]     On that analysis, the decision under challenge is no more than the exercise of a discretion which may only be challenged on orthodox principles: such as, whether I took account of irrelevant factors, whether I took into account irrelevant factors, whether I erred in law or whether I was plainly wrong.  I do not consider that there is any issue of principle that arises that is fit to submit to the Court of Appeal in terms

of the test set out in R v Slater,[6] based on that analysis.

Result

[6] R v Slater [1997] 1 NZLR 211 (CA).

[15]     Having regard to those considerations, the application for leave to appeal is dismissed.

P R Heath J