Winiata v Ministry of Fisheries

[2012] NZHC 1637

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2011-082-000181 [2012] NZHC 1637

JOHN DAVID WINIATA

Appellant

v

MINISTRY OF FISHERIES

Respondent

Hearing:         3 May 2012

Counsel:         Appellant in person

F Cleary for Respondent

Judgment:      3 May 2012

(ORAL) JUDGMENT OF LANG J

[on appeal against conviction and sentence]

JOHN DAVID WINIATA V MINISTRY OF FISHERIES HC GIS CRI-2011-082-000181 [3 May 2012]

[1]      Mr  Winiata  faced  a  charge  in  the  District  Court  at  Wairoa  of  being  in possession of more than three times the daily limit of 150 pipi.  He was due to attend a defended hearing on 17 November 2011, but when the proceeding was called there was no appearance by him or on his behalf.

[2]      The prosecution had earlier obtained leave of the Court to proceed by way of formal proof given that this was an offence punishable by fine only.  Having read the affidavit tendered in support of the prosecution, the Judge convicted Mr Winiata and fined  him  $1,200.[1]     He  now  appeals  to  this  Court  against  his  conviction  and sentence.

[1] Ministry of Fisheries v Winiata DC Wairoa CRI-2011-082-000181, 17 November 2011.

[3]      During the hearing today, Mr Winiata explained to me that he was present at Court at 10 am on 17 November 2011.  He sat outside the Court and waited for his case to be called.  He said that his case was never announced and, by lunchtime, all cases that were due to be heard that day had been completed and everybody left the Court.  The first that he knew of his conviction was when he received a letter from the Court Registrar approximately a week later advising him of the conviction and fine.   As a result, he says that he has been denied an opportunity to defend the charge.

[4]      Mr Winiata has been told by others that his case was heard at 8.30 am on

17 November 2011.   I do not accept that that can be correct, because the Judge’s decision records that it was given at 10.25 am on that date.   I am in no position, however, to say that Mr Winiata is not telling the truth when he says that he was at Court on 17 November.  I think that what must have happened is that his case was called and, for some reason, he did not become aware of that fact.  It may be that there was no announcement of the case outside the Court where Mr Winiata was sitting, or he may have briefly absented himself from the Court precincts for one reason or another.  Whatever the reason, I am satisfied that Mr Winiata wished to

efend the charge and that he was effectively denied the opportunity to do that.

[5]      For that reason I allow the appeal and quash the conviction.   I remit the proceeding to the District Court at Wairoa for re-hearing.  I have advised Mr Winiata that he needs to take particular care to ensure that he is aware of the time at which the proceeding will be called so that there can be no repeat of what happened on

17 November 2011.

Lang J

Solicitors:
Crown Solicitor, Napier

Copy to: Appellant