Zhang v Police - [2013] NZHC 1949

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-000828 [2013] NZHC 1949

BETWEEN ZIXIA ZHANG Plaintiff

ANDNEW ZEALAND POLICE First Defendant

ANDDISTRICT COURT AT MANUKAU Second Defendant

Hearing: 22 July 2013

Appearances: F C Deliu and Z Chen for the Plaintiff
D J Perkins for the First Defendant
No appearance for the Second Defendant

Judgment: 5 August 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 5 August 2013 at 11.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date:

ZIXIA ZHANG v NEW ZEALAND POLICE [2013] NZHC 1949 [5 August 2013]

Introduction

[1] On 19 October 2012, Judge F J Eivers dismissed informations laid against Mr Zhang alleging careless use of a motor vehicle and driving with excess blood alcohol. The Judge considered that she was obliged to dismiss the informations because the summonses had not been served on Mr Zhang. The police filed and served a notice of appeal on a question of law within time. However, they did not file a draft case stated until two days outside the 14 day time limit. They also did not serve a copy of the draft case on Mr Zhang despite being obliged to do so “forthwith”. Despite these irregularities, the Judge settled and signed the case stated detailing the questions of law to be determined by this Court on the appeal.

[2] Mr Zhang applies for judicial review challenging the Judge’s decision to settle and sign the case. He seeks an order: “quashing the exercise of power and/or decisions in question”; a “declaration that the appeal is closed”; and an order prohibiting the police from taking any further steps in relation to the appeal. Alternatively, Mr Zhang seeks an order directing the District Court to reconsider its decision to state a case after hearing from the parties. He also seeks unspecified damages against the police under the New Zealand Bill of Rights Act 1990 for failing to serve a copy of the draft case stated on him.

Background

[3] The police allege that at about 4.30 am on 29 January 2012, Mr Zhang was driving along Dannemora Drive in East Auckland when he crashed into a parked car, mounted the kerb and knocked over a tree before coming to rest on the front lawn of a nearby property. Mr Zhang decamped from the crash scene but was found by the police a short time later. A specimen of Mr Zhang’s blood was taken and found to contain 215 milligrams of alcohol per 100 millilitres of blood.

[4] On 8 February 2012, the police sent Mr Zhang a copy of the certificate of analysis obtained from ESR and a traffic offence notice for driving with excess blood alcohol and careless use of a motor vehicle.

[5] Informations in respect of these alleged offences were laid on

23 February 2012 and summonses were prepared for an initial appearance in the Manukau District Court on 26 April 2012. However, these summonses were never…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 1949
Decision Date: 5 August 2013

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine whether the District Court judge correctly signed and settled a case stated on an appeal from a decision dismissing charges against Mr. Zhang for careless use of a motor vehicle and driving with excess blood alcohol. The District Court had dismissed the charges against Mr. Zhang because he had not been served with summonses. The police appealed this decision, but they filed the case stated two days outside the 14-day limit and did not serve a copy on Mr. Zhang. Mr. Zhang sought judicial review of the District Court judge’s decision to sign the case stated.

The court needed to decide if the District Court judge breached the rules of natural justice by signing the case stated without hearing from Mr. Zhang, whether the District Court judge made a mistake of fact in signing the case stated, whether the judge acted beyond her powers in signing the case stated, and if the judge's actions were unreasonable.

The court found that Mr. Zhang had no right to be heard on the form and content of the case stated, as the judge is responsible for settling the questions of law. The court also found that the District Court judge could extend the time for filing the case stated under section 204 of the Summary Proceedings Act 1957, even if no formal application for an extension was made. The court held that the failure to serve the case stated on Mr. Zhang did not invalidate the appeal, as he had no right to be heard at that stage. The court further held that the judge did not act unreasonably in signing the case stated without hearing from the parties, as the police had the right to appeal on a question of law, and Mr. Zhang would be able to exercise his right to be heard at the appeal hearing in the High Court.

The plaintiff’s application for judicial review was dismissed, and the first defendant was entitled to costs on a 2B basis.

Orders