W v Police HC Christchurch Cri-2006-409-194

[2007] NZHC 113

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2006-409-000194

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 March 2007

Counsel:        B L Read for Appellant

R Souness for Respondent

Judgment:      7 March 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      Mr W   appeals against a finding that an infringement notice offence was proved, being an offence of driving in excess of 50 kilometres per hour, upon which he was fined the sum of $230.  Despite the nature of the charge, the proceeding has a somewhat convoluted history.

[2]      The offence was alleged to have been committed on 9 February 2006  in

Cashel  Street,  Christchurch.    An  infringement  notice  was  issued  to  which,  on

15 March  2006,  Mr  W    indicated  his  intention  to  defend  and  requested  a hearing.  Subsequently there was an initial hearing on 19 May at which it seems that there was a discussion between the police prosecutor and Mr W  , in the course

W V NZ POLICE HC CHCH CRI-2006-409-000194  7 March 2007

of which the former suggested to Mr W   that it may be in his best interests not to continue with the defence to the infringement notice.  That suggestion was largely based on information available to the prosecutor, being the word of the officer who had apprehended the appellant on 9 February, who said that Mr W  ’s response was not that he was driving at less than 50 kilometres per hour but rather that he could not have been doing more than 59 kilometres per hour or else a speed warning device  in  his  taxi  would  have  activated.    In  fact  the  apprehending  officer  had obtained a radar reading of 77 kilometres per hour.

[3]      In light of that advice, it seems, Mr W   on 10 July 2006 wrote to the traffic  clerk  at  the  Christchurch  District  Court  indicating  a  change  of  plea  but advising that he still wished to dispute the alleged speed and to do so in the context of a court hearing.

[4]      A further hearing before Justices was scheduled on 19 July 2006 but it is common ground that Mr W   failed to attend.  I am not sure as to the reasons for that but, in the event, they do not matter.  The Justices did not proceed by default, but rather arranged a further hearing for 2 August 2006.

[5]      Significantly, in anticipation of that hearing, a letter was written by the traffic clerk to Mr W  , which included this:

This matter has been set down for a defended hearing on Wednesday the 2nd day of August 2006 at 10.00am.  The Justices of the Peace have directed this hearing because in your letter dated 10 July 2006 you have disputed the alleged speed.   Please bring all of your witnesses and evidence along to support your case on this day.

[6]      It seems that this letter did not reach Mr W   because it was returned to the registry marked “Return to Sender”.   Nonetheless, as a result of approaching unnamed members of the registry staff, Mr W   was advised of the 2 August hearing.  But he claims in an affidavit which he subsequently swore in this Court, that although he attended that hearing, he did so not understanding its purpose and extent.  What he said in the affidavit is:

I had understood the Justices of the Peace wanted me to explain my position, as detailed in my first and second letters.   However, when the matter was

called, the Justices of the Peace simply asked me whether I wished to plead guilty or not guilty.

[7]      That is rather confirmed by the transcript of the hearing, which, at least in relation to the prosecution case, is unremarkable.   Evidence was given by the apprehending officer concerning the radar check, stopping Mr W   and his verbal responses on the day.   When Mr W   was asked whether he wished to cross- examine, he effectively declined to do so.   He gave some brief evidence and then was cross-examined by the police prosecutor.  It was only in cross-examination that he  adequately  expressed  his  main  point,  namely that  he  did  not  accept  the  77 kilometre reading because his speed warning device had not been activated, it providing a warning signal at 59 kilometres per hour.

[8]      Unsurprisingly, the Justices gave an oral decision in which, by implication at least, they found that the speed was 77 kilometres per hour.   This is perhaps most evident from the fact that they imposed the same fine as would have been incurred had the infringement offence not been the subject of a defended hearing.

[9]      If this history is not enough, there is somewhat  more to come.   Later in August Mr W   made written application for a rehearing.  He did so, it seems to me, essentially on the basis that when he attended the hearing on 2 August he was unaware of its true scope and therefore was in no position to advance his case with reference to the disputed fact, i.e. whether he was driving at 77 kilometres per hour or a somewhat lesser speed than that, although over 50 kilometres per hour.   A supporting affidavit recorded much of the history of the matter to which I have already referred.  The affidavit was obviously served on the police.

[10]     On  11  September  2006  a  senior  constable  replied  to  the  Registrar  with reference to the rehearing application.  The letter is two and a half pages long.  It is well written and deals point  by point  with the  various contentions contained  in Mr W  ’s  application  for  a  rehearing.    For  example,  with  reference  to  the position that obtained at the hearing on 2 August, the letter writer said:

The Court,  on 2  August,  was  satisfied  that  the defendant  had  not  been unfairly treated or disadvantaged by the proceedings thus far, and called for the matter to proceed.  The defendant made no submissions to the Court in

relation to being unaware of the nature of the hearing, his role, or his being unprepared.

I infer that such letter was indeed seen by the Justices.  On the other hand it was not referred to Mr W  .  He was given no opportunity to meet its contents.

[11]     On 13 September (only two days after the letter was written), the Justices considered the rehearing application.  Their decision is recorded on the reverse of the infringement notice as follows:

Considered in chambers. Rehearing Declined.

No  irregularities,  Def  advised  of  procedure,  attended  hearing  and  made admissions see MOT v Hyslop Blair Transport

The entry is then signed by both of the Justices.

[12]     I take it that the reference to the defendant being advised is a reference to the letter from the traffic clerk dated 28 July in which Mr W   was told of the need to bring his witnesses and evidence to the hearing on 2 August.  To that extent, then, it seems that the Justices laboured under the misapprehension that the letter had reached its target.   Obviously the Justices were not alive to the difficulty that in acting  on  the  letter  from  the  police  (which  effectively  refuted  the  contents  of Mr W  ’s affidavit) there was a natural justice problem.

[13]     Following this decision not to grant a rehearing an appeal to this Court was filed.  This morning I heard brief argument from Ms Read directed to the conviction appeal.  To my mind an appeal against conviction was doomed.  In reality there was no defended hearing with reference to conviction.  The hearing on 2 August was, in reality, a disputed fact hearing.  But in any event, on the basis of the evidence which the Justices heard, there is really no basis to differ from the conclusion which they reached.  On the one hand the informant adduced considerable evidence in support of its allegation that the relevant speed was 77 kilometres per hour.  The normal range of certificates were produced together with persuasive evidence from the apprehending officer.

[14]     By contrast, what  little  Mr  W    said  on 2  August  was  unpersuasive. Whether this reflects the circumstance that he had little to say or that he was (as he claims) ill-prepared, I really do not know.

[15]     Ms Read also made submissions directed to the proposition that the Court should construe the appeal as extending to an application for review of the decision declining to order a rehearing.   This, of course, is necessary because there is no jurisdiction to appeal to this Court against the refusal of an application for rehearing. The  case  was  stood  down  over  the  lunch  hour  so  that  counsel  could  gather themselves to consider this aspect of the matter.  As a result I have been favoured with copies of some of the letters to which I have already referred, but which were not on the court file until counsel made them available this afternoon.

[16]     It seems to me that the effective question has now switched to whether there is a  basis to  review  the  decision declining  a  rehearing.    To  my  mind  there  is, essentially for two reasons.  The first is the letter of 28 July addressed to Mr W   from the traffic clerk advising him precisely of the nature of the hearing which was to occur on 2 August.  The indications are that he did not receive that letter, but that both the prosecutor and the Justices proceeded on the assumption that he had been forewarned in writing as to the nature of the hearing and the need to be prepared.

[17]     The second factor is the police letter of 11 September refuting the case raised by Mr W   in support of his application for a rehearing.  As I have said a plain inference is available that this letter was never referred to him for a response.  Yet it was, I think, relied upon by the Justices in reaching  the  conclusion to  refuse a rehearing.

[18]     Ms Souness argued that s78B of the Summary Proceedings Act 1957, which governs the power to correct irregularities in proceedings for infringement offences, does not envisage a formal hearing of, in this instance, a rehearing application.  She pointed out that s78B(1)(a)(iii) was the relevant provision providing that if a Judge or Registrar on application is satisfied that “some other irregularity” occurred in the procedures leading up to the order for the fine and costs, or both, then there was power to intervene.

[19]     I certainly agree that a formal hearing as such is not required and that s78B does leave at large the processes which are to be employed in determining whether there is an irregularity sufficient to warrant reopening a matter.   But nonetheless issues of this kind have to be tested in their particular context.  Here the application for a rehearing was made in writing, and in some detail and, moreover, the police response was detailed and I should say persuasive.   In those circumstances it does not accord with the requirements of natural justice for one side’s case to be shown to the other, but not visa versa.

[20]     For these reasons I am satisfied that it is appropriate to review the decision declining a rehearing.  But that is not the end of the matter.  Whether a remedy is appropriate in a review context is always a matter of discretion.  On the basis of the evidence given by Mr W   at the disputed fact hearing on 2 August, it is difficult to see that any useful purpose would be served by ordering a rehearing.  However, Ms Read has drawn my attention to developments since then.  Firstly, evidence has been obtained from an officer of NIWA to the effect that 9 February 2006 was a particularly wet day when an appreciable amount of rain fell.  There is an affidavit on the appeal file to that effect.

[21]     Second,  counsel indicated from the  bar  that  expert  evidence  is  available concerning the potential for heavy rainfall to have an impact upon the reliability of a radar speed reading.   Hence, it  is said, ordering a rehearing is not necessarily a forlorn exercise.  There may be a genuine dispute as to the actual speed which awaits determination.   I do not know, but what I do accept is that on the basis of the information from counsel and from the affidavit, the possibility cannot be rejected out of hand.   It follows that the remedy of ordering a rehearing is, I think, in the particular circumstances, an appropriate response.

[22]     Finally, I wish to make it clear that it is a rehearing in relation to a disputed fact.  Mr W   has not resiled from his plea of guilty.  His July letter to the Court amounted to a request  for a disputed fact  hearing.   Accordingly the appropriate course is that the rehearing should be directed to that aspect, being a contest in terms of s24 of the Sentencing Act 2002.   For these reasons the case is remitted to the District Court for rehearing, although restricted to the disputed fact element.

Solicitors:

Instructing Solicitor – J McCall, Papprill Hadfield & Aldous, Christchurch for Appellant

(Counsel:  B L Read)

Raymond Donnelly & Co, Christchurch for Respondent