W v Police HC Napier CRI.2006-020-2283

[2007] NZHC 646

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI.2006-020-2283

W

Applicant

v

THE POLICE

Respondent

Hearing:         12 July 2007

Counsel:         Leo Lafferty for Applicant

Russell J Collins for Respondent

Judgment:      12 July 2007

[ORAL] JUDGMENT OF WILLIAMS J [on application to vacate guilty plea]

Solicitors:

Crown Solicitor, P O Box 609 Napier

Leo P F Lafferty, P O Box 322 Napier

Copy for:

Brendan McCormack, Case Officer, Criminal Registry, High Court Napier.

W V POLICE HC NAP CRI.2006-020-2283  12 July 2007

[1]      The applicant, Mr W  , was arrested on 20 June 2006 along with a brother of his partner following Police execution of a search warrant on a property at which all three were living.

[2]      As a result of what the Police discovered on that day both Mr W   and the partner, Samuel Tuhiwai, were charged with cultivating cannabis, selling cannabis and possessing cannabis for sale.

[3]      As matters turned out, the applicant, Mr W  , pleaded guilty to those counts but later resiled from that and applied for leave to vacate the guilty pleas.

[4]      By an understandable oversight, the application for leave to vacate the guilty pleas was transferred to this Court on the supposition that it was only this Court that had power to deal with the application.   However, as Mr Collins for the Crown acknowledged this morning in his helpful memorandum, the District Court does have jurisdiction to deal with applications for leave to vacate guilty pleas when that Court is sitting in its trial jurisdiction, as it plainly was in relation to Mr W  . Leader v Christchurch District Court [2005] NZAR 18.

[5]      The matter came before this Court for hearing today before the jurisdiction point had been fully investigated.  All those involved in the matter were prepared for the hearing.   That involved not just Mr W   and his sister who has filed an affidavit in support of the application, but also involved local defence practitioners whose conduct Mr W   had criticised in his affidavit.

[6]      However, it was recognised that the only way in which this Court could deal with the application was either by invoking its inherent jurisdiction or by acceding to Mr Collins’ oral application under the District Courts Act 1947 s 28J to remove the file into this Court solely for the hearing of the application to vacate the plea and then immediately middle banding it back to the District Court either for Mr W  ’s trial or for his sentencing, depending on the outcome of the application.

[7]      Whilst there were obvious practical advantages in the Court adopting that course in order to deal with the application and determine it one way or the other, it was artificial and contrived for this Court to deal with it because, as both counsel accepted, this is a matter which is really in the District Court’s jurisdiction and has only been brought here because of an error in the procedural approach adopted.

[8]      Counsel were given an opportunity to discuss the matter with Mr Lafferty having the opportunity to take instructions from Mr W  .   As a result, it has been agreed that the application to vacate the guilty plea should not proceed in this Court.

[9]      This Court will decline jurisdiction to deal with the matter, either under its inherent jurisdiction or by declining the Crown’s oral s 28J application and remit all matters concerning Mr W   to the District Court, to be dealt with on 26 July 2007 at 2:15pm.

[10]     Mr W   is remanded on continuing bail on the same terms until the date of the Callover.

………………………………..

WILLIAMS J.