B v Police HC Auckland CRI 2006-404-179

[2006] NZHC 1457

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-000179

B

Appellant

v

POLICE

Respondent

Hearing:         23 November 2006 (In Chambers) Appearances: Appellant in Person (By Telephone)

K Catto for Respondent

Judgment:      23 November 2006

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a decision of two Justices of the Peace sitting at the

Manukau District Court on 18 April where the Court fined Mr B  , the appellant,

$200 (including $30 costs).

[2]      The charge sheet on the file alleges an infringement on 7 March 2005 at

Otahuhu:

… that the defendant drove a motor vehicle on a road at a speed exceeding the relevant speed limit of 50 kilometres per hour.

B V POLICE  HC AK CRI 2006-404-000179  23 November 2006

[3]      The summary of facts says:

At about 21:05hrs on Monday the 07th  of March 2005 the DEFENDANT: BRUNS was the driver of a Motor Vehicle, Registration Number:  TY3771 which  was  checked by approved  vehicle surveillance equipment  (Radar) travelling at 72km/hr on Great South Road, Otahuhu

The Infringement fee for this speed is $170.00

[4]      The transcript of the hearing on 18 April 2006 has the Court saying:

Well Mr B   this occurred on the Pakuranga Road, 82 kilometres an hour checked by radar in a 60 k area, so you are charged with exceeding 60 kilometres an hour, so you are 22 kilometres over.

[5]      That comment, obviously, is in contradiction to the charge which was of exceeding 50 kilometre per hour, not exceeding 60 kilometres per hour, and on the summary of facts it says that the offence took place on Great South Road, Otahuhu.

[6]      While  I  was  searching  for  a  word  to  describe  the  situation  Mr  B   described it as a “mess”.   I agree.

[7]      The appropriate solution for this minor conviction, in my view, is to allow the appeal and set the conviction aside.  I do note that there is room to have some doubt about this Court’s statutory power to do that.  It is also complicated by the fact that the Justices of the Peace had, in the same hearing, vacated an earlier not guilty plea and entered a plea of guilty.

[8]      There is, however, a further confusion on the facts as Mr B   does not think he was in Court at the time.

[9]      I  am  satisfied  that  on  the  matters  set  out  in  this  judgment  there  is  a considerable risk of a miscarriage of justice if this conviction stands.   There is, of course, a power to send the matter back to the District  Court.   But, that would impose on Mr B   further disruption to his private life on what appears to be a procedural  muck  up  and  I  do  not  think  that  the  charge  warrants  continued interference with Mr B  ’ private life.

[10]     Counsel,  Ms  Catto,  has  quite  properly  not  opposed  the  allowing  of  this appeal.  She has drawn to my attention a decision of the Court of Appeal in Davies v Ministry of Transport (1989) 5 CRNZ 371, which might, were the file in order, query the foundation of the appeal jurisdiction.   However, that  decision was an appeal against an automated system of dealing with minor traffic offences.  In this case there was a hearing, according to the file, possibly anyway, by the Justices of the Peace, although it is possible that the transcript is muddled and is not referring to this particular charge.

[11]     In my view this Court has an inherent jurisdiction to avoid a delay to what appears to be miscarriages of justice if the matter is allowed to continue and relying on that  authority this appeal  is allowed  in respect  of the charge which  has the Manukau District Court numbers of CRI 5-092-5888 and CRN 5092117297.

[12]     Having spoken to counsel I am satisfied that we have identified the correct charge.

[13]     Accordingly, the appeal is allowed and the conviction entered of a fine of

$170 and $30 Court costs is set aside.

[14]     The appeal is allowed and the fine imposed is be set aside.

Fogarty J

Solicitors:

Meredith Connell, Auckland, for Crown (Respondent)

cc:   D D B  , 5 Robyn Place, Mangere 1701