Wilson v Police

[2013] NZHC 2448

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-404-000219 [2013] NZHC 2448

BETWEEN

ANNA MUNRO WILSON

Appellant

AND

NEW ZEALAND POLICE

Defendant

Hearing:	17 September 2013
Appearances:	M A Littlefair for Appellant C M Gisler for Defendant
Judgment:	19 September 2013

JUDGMENT OF VENNING J

This judgment was delivered by me on 19 September 2013 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:             Crown Solicitor, Whangarei Copy to: D J Blaikie, Kaikohe

WILSON v NZ POLICE [2013] NZHC 2448 [19 September 2013]

Introduction

[1]  Following a defended hearing in the District Court at Kaikohe Ms Wilson was convicted of driving with excess breath alcohol while operating a vehicle in the transport service. Judge Davis entered the conviction on 25 July 2013 after delivery of a reserved decision on 22 July 2013.

[2]      Ms Wilson lodged an appeal against conviction on 31 July 2013.

Background facts and process

[3] The facts can be shortly stated. On  20  October  2012  Ms  Wilson  was operating a taxi shuttle service in Paihia. She was stopped at a random breath test site on Selwyn Road and breath testing procedures were carried out. At the time Ms Wilson had a number of fare paying passengers with her. Ms Wilson failed the road side screening procedures. Eventually an evidential breath test was completed. Ms Wilson’s breath was found to contain 680 micrograms of alcohol per litre of breath.

[4] Following the completion of the evidential breath testing procedure,  the attending officer, Constable Darbyshire, issued a summons in accordance with s 19B of the Summary Proceedings Act 1957 (the Act)1 requiring Ms Wilson to attend Court on 16 November 2012.

[5] The procedural position then became somewhat complicated. The police failed to issue an information within the seven days required by s 19B(3) of the Act. The police generated two informations, each of which had separate CRN numbers assigned to them. The first, ending CRN 1966, was not sworn until 16 November 2012. The second, ending in CRN 2007, was sworn on 30 October 2012.

[6] Ms Wilson was then served with a summons and the information ending CRN 2007 on 5 November 2012. Both informations were before the Court on 16 November 2012 when the matter was first called.

1       Although the section has been subsequently  repealed, it still applies for present purposes: Criminal Procedure Act 2011, s 397.

[7] The police attributed CRN 1966 to the s 19B procedure and, on 15 January 2013, sought and were granted leave to withdraw that particular information. The prosecution proceeded on the basis of CRN 2007.

The District Court decision

[8]  At the hearing before Judge Davis, Mr Littlefair argued there was no properly laid charge before the Court because the first information laid in the Court, CRN 2007, was the information attaching to the s 19B process. As it was laid outside the time prescribed by s 19B it was a nullity. While the police could have relied on the second information, CRN 1966, that had been withdrawn.  Mr Littlefair relied on the

case of Police v Armstrong as authority for the proposition that CRN 2007 was a nullity.2

[9] Judge Davis distinguished Police v Armstrong.  He considered that CRN 2007 was not part of the s 19B summons process because it was independently served on 5 November 2012 and the s 19B process did not contemplate an information being served on a defendant, only the summons in the form prescribed by s 19B. He found the charge proved.

Decision

[10]   The issue in this case is which of the informations, CRN 2007 or CRN 1966, is to be attributed to the s 19B procedure.

[11]    The starting point is s 19B of the Act. It provides:

19B     Summons following evidential breath test

[(1)If a person undergoes an evidential breath test under section 69 of the Land Transport Act 1998 and the test is positive, but the person who underwent the test does not advise an enforcement officer within 10 minutes of being advised of the matters specified in section 77(3)(a) of the Land Transport Act 1998 that the person wishes to undergo a blood test, an enforcement officer may sign and serve on the person a summons in a form prescribed for the purposes of this section.]

2       Police v Armstrong [2008] DCR 722.

(2)Every such summons shall require the person to appear on a day not later than 2 months after the date of the summons at the Court where the information required by subsection (3) of this section is to be filed.

(3)An information under this Part of this Act in respect of the offence with which the person is charged shall be laid and filed by an enforcement officer as soon as practicable after the evidential breath test was administered, and in any event not later than 7 days after the day the test was administered.

(4)It is the duty of every enforcement officer who issues a summons under this section to ensure that the information required by subsection (3) of this section is laid and filed.

(5)A copy of a summons served under this section shall be filed with the information, and the copy shall bear an endorsement, signed by the enforcement officer who issued the summons, showing the fact, time, and mode of service.

(6)In this section, the term enforcement officer [has the same meaning as it has in section 2(1) of the Land Transport Act 1998].

[12]    The section has been considered by the Court in a number of decisions.  In

Police v Miller Penlington J noted: 3

Section 19B has a practical effect of reversing the normal procedure which is:

(i)The laying of an information;

(ii)The filing of the information;  and

(iii)The issue of a summons.

Under s 19B the commencing procedural step is the issue and service of the summons by the enforcement officer.

The practical effect of s 19B is to avoid the need to serve a summons on the alleged offender prior to Court. However, the summons itself has no independent life of its own. Unless there is a valid information before the Court there is nothing for it to determine.4

3       Police v Miller (1999) 16 CRNZ 594 at 597.

4       McNeill v Ministry of Transport HC Dunedin AP 12/92, 2 April 1992.

[13] Where, as here, s 19B(3) is not complied with and the information is laid outside the seven day period it is a nullity: Kopua v The Police and McNeill v Ministry of Transport.5

[14] The nullity cannot be cured by application of s 204 of the Summary Proceedings Act: McNeill v Ministry of Transport. I return to the issue in this case – which of the two informations is the nullity?

[15] It is important to note that an information is laid within the meaning of the Summary Proceedings Act 1957 when it is sworn. The laying of an information means no more than the making of a formal charge against the alleged offender, which is substantiated on oath before a District Court Judge, Justice of the Peace or a Registrar not being a constable:   Bowron Bros v Bishop, R v Keir, and Police v

Miller.6

[16] In the present case CRN 2007 was laid on 30 October 2012 when the information was sworn. CRN 1966 was not laid until it was sworn on 16 November 2012. Until laid, the computer generated CRN forms had no status or effect.

[17] What appears to have happened in the present case is that, after Constable Darbyshire had issued the summons on 20 October, it was then left to another officer to prepare and lay the information but unfortunately that was not done within the seven days required by s 19B(3). It seems an information form CRN 1966 was generated but not laid. Constable Darbyshire then arranged for another information form to be generated from the police computer system, CRN 2007, which was laid and filed on 30 October 2012 and then served on 5 November 2012. It appears that Constable Darbyshire was under the misapprehension that the earlier information CRN 1966 had somehow been withdrawn and CRN 2007 had replaced it, even though CRN 1966 had not, at that stage been laid. The following passage of her evidence-in-chief, after confirming service of CRN 2007, is relevant:

5       Kopua v The Police HC Palmerston North AP 22/86 & AP 23/86, 19 August 1986;  and McNeill v Ministry of Transport, above n 4.

6       Bowron Bros v Bishop (1910) 29 NZLR 759 (CA); R v Keir (1994) 11 CRNZ 532 (CA);  and

Police v Miller, above n 2, at 595–596.

Q.Why did you serve that summons on her when you’d already served a 19B summons on her on the 20th of October?

A.Because that information had  been  withdrawn  and  a  new  one created.

And later:

A.Because I had asked Murray Wickliffe, [the constable who swore out both informations] the constable to come to get a new summons. I received this back and then served it on her.

Q.       And what was wrong with the first one?

A.       It was, wasn’t laid within the seven days.

[18] As noted, in fact the first information CRN 1966 was not sworn and so therefore was not laid and filed until 16 November.

[19] As Judge Davis observed, there is no denying the procedures followed by the police were unwieldy and unfortunate.

[20] Before Judge Davis and again before this Court Mr Littlefair submitted this case was analogous to the case of Police v Armstrong, a decision of the District Court from Kaikohe.7 As noted, the Judge distinguished that case on the facts. To determine if the decision can be distinguished, it is necessary to set out and compare the facts of Armstrong with this case:

7 February 2007 – Mr Armstrong failed an evidential breath test. Mr Armstrong is issued with a summons to appear in Court. The police invoke the s 19B “fast track” procedure and Mr Armstrong was issued with a summons. [20 October Ms Wilson issued with the s 19B “fast track” summons].

7 March 2007 – Information 519 relating to the EBA charge was laid and filed at Court (out of time and thus a nullity). [30 October CRN 2007 laid and filed (out of time and prima facie a nullity)].

12 March 2007 – A second information was laid and filed, relating to the EBA charge on 7 February 2007, number 498. [16 November CRN 1966 laid and filed].

Subsequently the second information laid, number 498 was withdrawn by leave of the Court. [CRN 1966, the second information laid, was withdrawn on 15 January 2013].

[21] In the Armstrong case the police argued that, since information 519 [CRN 2007] was laid using the conventional approach (presumably in a summons as opposed to arrest form as with CRN 2007) and was therefore unconnected to the s 19B procedure, the fact it was not laid and filed within a seven day period, was of no relevance. Mr Armstrong’s counsel argued that the police were attempting to remedy the error of withdrawing information 498 [CRN 1966].

[22] While accepting that, pursuant to McNeill v Ministry of Transport, it would have been open for the police to withdraw information number 519 [CRN 2007] and subsequently lay and file information 498 [CRN 1966] in the conventional way, Judge Recordon held that, as 519 [CRN 2007] was laid and filed after the constable invoked the s 19B procedure, that information, 519 [CRN 2007], was to be regarded as the s 19B information. Because it was laid outside time it was a nullity so there was no valid information before the Court.

[23] The above analysis discloses that the issue in Armstrong was, as it is in this case, whether the information laid first in time, 519 [CRN 2007] (although numbered sequentially after the information laid and filed subsequently) was attributable to the s 19B procedure.

[24]     On  that  basis  I  agree  with  Mr  Littlefair’s  submission  that  the  case  of

Armstrong cannot be distinguished from the present.

[25] With respect to Judge Davis I consider he was wrong in seeking to distinguish the Armstrong decision by equating the CRN withdrawn by the Court in that case [498] as the equivalent of CRN 2007 leaving [519] (the equivalent of) CRN

1966 for resolution. In both cases the later numbered informations were laid before the earlier numbered informations. The material facts are the same.

[26] I return to the present case. The police invoked the s 19B procedure by the issue of the summons on the night to Ms Wilson. The police were then required to lay and file an information to be matched with a copy of that summons.8 It is logical, particularly given the time limits in s 19B(3), to attribute the first information laid, CRN 2007, to the s 19B procedure. The information under the section 19B must be laid and filed within seven days. Ordinarily an information alleging a summary offence may be laid and filed at any time within six months.

[27] The problem that has arisen in the present case (as in the Armstrong case) is that an information has been generated in the computer system, in the present case CRN 1966 (in the Armstrong case CRN 498), which was intended to satisfy the s 19B procedure but, for whatever reason, that information remained within the system and was not laid until after a subsequent information, which may have been intended to replace it, was laid and filed. However, as noted, the computer generated forms have no status until they are laid as informations and filed.

[28] Logically a subsequent information laid to replace an earlier and defective information under the s 19B procedure, can only do so if the defective information has itself already been laid by that time. Otherwise there is nothing to replace. Neither in the Armstrong case nor in the present case, did that occur.

[29]    I consider the provisions of s 19B also support that conclusion.  As noted, s 19B mandates the information is to be laid not later than seven days after the test was administered. That is reinforced by s 19B(4) which places a duty on every enforcement officer who issues a summons under s 19B to ensure the information is laid and filed. That is a clear statutory mandate reinforcing the requirement for the information to support the summons issued under s 19B(1) to be laid and filed. Otherwise the summons served under s 19B has nothing to attach to. The Court should not accept a situation where the police fail to comply with that clear statutory

direction. The obligation cannot be ignored by laying an information in summons form and serving that information and fresh summons on the alleged offender.

[30]    Even if the information is not able to be laid and filed in compliance with s 19B(3) it should still be laid and filed to relate to the summons issued under s 19B. While it will be a nullity McLean confirms that it is still open for the police to then lay and file an information in the usual way, within the six month period,  to prosecute the charge. The original null information can be formally withdrawn at any stage during that process before the hearing.

[31] To accept that information CRN 1966, (laid almost four weeks later) is the information relating to the s 19B procedure when CRN 2007 (which on the police argument could have been laid within six months) laid within 10 days was not related to the s 19B procedure is to strain the application of the section. While that may have been the intention of the police, it is inconsistent with the statutory provisions and the obligations on the police under it.

[32] For those reasons I conclude that CRN 2007, the first information laid and filed in this case, must be attributed to the s 19B procedure. That information is out of time and is a nullity. As that was the only information before the Court at the time of the hearing the appeal must be allowed.

[33] The Crown submit that by reference to Aylwin v Police convictions should not be avoided on the basis of technical arguments.9 I accept that  principle. However, this is not a technical argument directed at the steps required to process an alleged drunk driver as discussed in Aylwin. Rather, the issue in the present case is directed at processes directly within the control of the Court, namely the fundamental validity of charge documents.

Result

[34] The appeal must be allowed. The conviction is quashed and the sentence imposed is set aside. As more than six months has passed since the  alleged offending there is no order for a rehearing.

Venning J