WorkSafe New Zealand v Rupa [2022] NZHSE 10; [2022] NZDC 13527 (19 July 2022)

Last Updated: 29 January 2023

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2020-004-009160 [2022] NZDC 13527

WORKSAFE NEW ZEALAND Prosecutor

v

DILIP KUMAR RUPA Defendant

Date of Ruling:	19 July 2022
Appearances:	B Finn & A Simpson for the Prosecutor No appearance by or for the Defendant
Judgment:	19 July 2022

RULING OF JUDGE S BONNAR QC

(Re proceeding with hearing in the absence of the Defendant)

[1] The defendant, Dilip Rupa, is the proprietor of a café in Freeman’s Bay. He is charged with an offence against s 26(1) of the COVID-19 Public Health Response Act 2020.

[2] The charge alleges that he failed to comply with the COVID-19 Public Health Response (Alert Level Requirements) Order 2020 by failing to ensure that a copy of a QR Code for the café/workplace was displayed in a prominent place at or near the entrance of the workplace.

WORKSAFE NEW ZEALAND v DILIP KUMAR RUPA [2022] NZDC 13527 [19 July 2022]

[3] The matter has been before the court for some time. Mr Rupa was, I understand, originally charged in early 2021. The matter was first called on 5 January 2021 when there was no appearance and a warrant to arrest was issued. He subsequently appeared on 26 January 2021.

[4] The offence itself carries a maximum penalty of a term of imprisonment not exceeding six months or a fine not exceeding $4,000. Mr Finn has today advised me that if a conviction is entered, WorkSafe is likely to seek the imposition of a financial penalty only, possibly in the region of $1,500-$2,000.

[5] Mr Rupa has failed to appear today either at 9.30 am when the judge alone trial matters scheduled for today were called through, or again at approximately 10.15 am when the matter was recalled.

[6] Mr Finn, for WorkSafe, does not seek the issue of a warrant to arrest Mr Rupa for his failure to appear. Rather he applies to proceed with the hearing of the judge alone trial in the absence of Mr Rupa pursuant to s 122(3)(a) of the Criminal Procedure Act 2011.

[7] The matter has had a long history. It is apparent that Mr Rupa has consistently challenged the jurisdiction of the court to hear the charge. The matter came before her Honour Judge Maxwell on 7 April of this year. On that date, Mr Rupa again challenged the jurisdiction of the court and, shortly after doing so, he left the courtroom. The court was advised that he had, in fact, left the building.

[8] Her Honour subsequently issued a judgment in which her Honour addressed both the issue of the court’s jurisdiction to hear the proceedings and an application by the prosecutor to proceed in the absence of Mr Rupa on 7 April.1

[9] Her Honour issued a careful judgment in which she rejected Mr Rupa’s argument that the court had no jurisdiction. I understand that Mr Rupa has taken no steps to appeal her Honour’s judgment in that respect.

1 WorkSafe New Zealand v Dilip Kumar Rupa [2022] NZDC 8966.

[10] In relation to the application to proceed in the absence of Mr Rupa, her Honour traversed the statutory scheme of s 122 and the various authorities relating to the exercise of the discretion to proceed in the absence of a defendant. In particular, her Honour referred to Kumar v R, the judgment of the House of Lords in R v Jones, at para [58], and R v Momi and Others.2

[11] Her Honour concluded that the defendant did not have a reasonable excuse for his absence at the hearing. Her Honour held that a belief that the court lacked jurisdiction would not amount to a reasonable excuse.

[12] Turning to whether it was in the interests of justice to proceed with the trial in the defendant’s absence, her Honour concluded, first, in relation to the information available to the court about the reasons for his absence, that it was clear that Mr Rupa was absent because of his view that the court had no jurisdiction. Her Honour concluded that it was important for that issue to be addressed prior to the commencement of any judge alone trial. Her Honour was not satisfied, at that stage, that Mr Rupa had therefore necessary waived any right to appear at the substantive hearing of the matter.

[13] Her Honour concluded, in terms of s 121(4)(b) of the Act, that the court was not in a position to second guess what defence, if any, Mr Rupa may intend to raise. In terms of s 121(4)(c), her Honour was satisfied that any further delay would be relatively short and, indeed, today’s date for a subsequent judge alone trial was subsequently secured.

[14] In terms of s 121(4)(d), her Honour concluded that the offence was towards the lower end of the scale. In terms of her Honour’s overall assessment of the interests of justice, her Honour concluded, at that time, that it was not an appropriate case for the matter to proceed in Mr Rupa’s absence.

[15] It is clear that Mr Rupa has been made aware both of her Honour’s judgment and of today’s hearing date. Mr Finn has provided a copy of an email exchange which took place with Mr Rupa on 15 July. Mr Rupa had been forwarded a copy of her

2 Kumar v R [2013] NZCA 77, R v Jones [2003] 1 ACA 1 and R v Momi & Ors [2019] NZHC 2681.

Honour’s decision of 7 April. On 15 July Mr Finn emailed Mr Rupa confirming that the matter was for trial today and addressing various matters as to how the matter would proceed. Mr Finn concluded that email by noting that her Honour had ruled on the issue of jurisdiction at the previous hearing and, therefore, the court has jurisdiction to hear the proceedings.

[16] A reply was received by Mr Finn at 7.54 am this morning from Mr Rupa which simply reads: “Dear Minister of Courts and Police, Evidence the treaty jurisdictions lawfulness endorsing the judge. Regards, Dilip Rupa.”

[17] Mr Finn has advised me that he has received, at 10.06 am, a subsequent email from Mr Rupa, which reads: “The reason the Minister was asked to endorse the decision is because he was born in Samoa. This relates to the Samoan independence flag lowering. Best regards, Dilip Rupa.”

[18] Like Judge Maxwell, my judgment as to whether to proceed in the absence of Mr Rupa is guided by s 122 and s 121(4) of the Act. In terms of the requirements of s 122, clearly this charge relates to a category 2 offence. The defendant was required under s 118 of the Act to be present at trial. The prosecutor has attended the trial, but the defendant has not.

[19] In terms of ss (3), I am satisfied that the defendant does not have a reasonable excuse for his non-attendance today. It is apparent, from the history of the proceedings and from the email traffic to which I have referred, that notwithstanding Judge Maxwell’s judgment, Mr Rupa continues to challenge the jurisdiction of this court to hear the charge. That is not a reasonable excuse for non-appearance.

[20] Turning to the factors set out in s 121(4), I deal first with the information available to the court about the reasons for the defendant’s absence. I have already addressed this. It is clear that the defendant is making a conscious decision to absent himself from the court because he continues to challenge the jurisdiction of the court. He has not, however, sought to appeal her Honour’s ruling as to jurisdiction in any legitimate way.

[21] As to the issues the defendant has indicated are in dispute and the extent to which the defendant’s evidence is critical to an evaluation of those issues, the court is unaware of any substantive defence which is intended to be run by Mr Rupa beyond that of the challenge to jurisdiction which has already been determined.

[22] The prosecutor confirms that the only issue that Mr Rupa has ever raised in relation to the charge, during the course of the investigation or the proceedings, has been one of jurisdiction. He has previously stated that the reason he did not have a QR Code at the business premises was because he considered that the order requiring him to have such a code was not legitimate.

[23] As to the likely length of any adjournment, the matter has now been before the court for in excess of 18 months. Any further adjournment to another one-day judge alone trial date is likely to be a matter of months. Further, there is nothing to suggest, even if an adjournment of the hearing was granted today, that the court would not simply be in the same position as it is today at the next scheduled appearance. The matter has already had one scheduled judge alone trial date at which six or seven prosecution witnesses were present. Today is the second scheduled judge alone trial date.

[24] Turning to the nature and seriousness of the offence, I accept, as does the prosecution, that this is, in the scheme of things, a low-level offence. That is, however, a double-edged sword. The fact that the matter is only likely to result in a financial penalty to Mr Rupa, if he is found guilty, is in my view a factor which, in the overall circumstances of the case, weighs in favour of proceeding in the absence of him, rather than adjourning the case again.

[25] Assessing the overall interests of justice, for the reasons that I have already traversed, I do not consider that it would be contrary to the interests of justice to proceed in the absence of Mr Rupa. Again, the matter has been before the court for a significant amount of time. Mr Rupa has clearly been aware of today’s date and has chosen not to attend, notwithstanding the Court’s previous ruling that the court had jurisdiction to hear the charge. He has not elected, at this stage, to file any appeal against her Honour’s ruling.

[26] I agree with Mr Finn that the appropriate course is for the trial to proceed. The guilt or otherwise of Mr Rupa can be determined and, if he is found guilty of the charge, his remedy is to appeal thereafter if he wishes to do so.

[27] Accordingly, the prosecution application to proceed in his absence is granted. I will hear the prosecution evidence.

Judge SJ Bonnar QC

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 19/07/2022