Blakemore v Waitakere District Court CA25/03 [2003] NZCA 325; [2004] NZAR 115 (22 September 2003)

Last Updated: 22 October 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA25/03

BETWEEN HERBERT WILLIAM BLAKEMORE Appellant

AND THE WAITAKERE DISTRICT COURT First Respondent

AND THE NEW ZEALAND POLICE Second Respondent

Hearing: 23 July 2003

Coram: Keith J Anderson J Glazebrook J

Appearances: S McAnally for the Appellant

A Markham for the Respondents

Written submissions: 28 July 2003 and 5 August 2003

Judgment: 22 September 2003

_{JUDGMENT OF THE COURT DELIVERED BY KEITH J}

[1] When does a "hearing" under s43 of the Summary Proceedings Act 1957 come to an end? This question arises because a District Court Judge exercised his power under that provision to amend informations (from summary to indictable) after the appellant had pleaded guilty in summary proceedings but before a conviction had been entered or a sentence imposed. That power of amendment may be exercised "in any way at any time during the hearing". Secondly, was the exercise of the power in this case reviewable on the ground that the prosecution

_{sought the amendment so that it could apply for the forfeiture of tainted property}

HERBERT WILLIAM BLAKEMORE V THE WAITAKERE DISTRICT COURT And Anor CA CA25/03 [22

September 2003]

under the Proceeds of Crimes Act 1991? That is to say, was the power of amendment being exercised for an improper, collateral purpose?

[2] The questions arise from an application by the appellant for judicial review of the decision of the District Court Judge to amend the information. Randerson J in the High Court dismissed the application, holding that the "hearing" continued at least until a conviction was entered and that accordingly the information could be amended when it was. Further, the District Court Judge's exercise of discretion was appropriate in the circumstances and not reviewable.

[3] While the notice of appeal and the written argument were confined to the "hearing" issue, the members of the Court asked counsel at the hearing to address the improper, collateral purpose issue which they did to a limited degree. At the Court's request they have also filed written submissions on that matter.

The charges and the District Court proceedings

[4] The appellant was charged, by way of summary informations filed under Part 2 of the Summary Proceedings Act, with the cultivation of cannabis, the possession of cannabis and the theft of electricity. He appeared at a status hearing in a District Court and was given a sentence indication of a suspended sentence plus some other form of penalty. The appellant pleaded guilty to all the charges and, because the Court required a probation report on the form the additional penalty should take, he was remanded for a month for sentence. Although the District Court Judge remanded the appellant for sentence he did not formally enter a conviction at that time because, for good reasons which he stated, he has adopted a practice under which he does not enter a conviction until the day on which sentence was passed. In the meantime, the prosecutor, unknown to the District Court and the appellant, had filed an application under the Proceeds of Crimes Act.

[5] It was in this context that the prosecutor appeared by counsel and asked the Court to decline summary jurisdiction and commit the appellant to the High Court for sentence. It had always been intended to proceed indictably, but an administrative error had occurred. The charges, as laid summarily, did not fall

within the definition of "serious offences" in the Proceeds of Crimes Act and accordingly the forfeiture application could be pursued only if the charges were dealt with indictably. The District Court Judge vacated, on his own motion, the appellant's guilty pleas and amended the informations as requested by the prosecution. The appellant has not pleaded to those amended informations which he has of course challenged by his judicial review application. The prosecution has indicated that it does not intend to seek a sentence other than that indicated at the District Court status hearing.

[6] It is now common ground that the District Court Judge had no power of his own motion to withdraw the guilty pleas. That would however be of no consequence if, as Randerson J held, the power to amend the informations was still available at the time the District Court Judge exercised it.

When does a hearing under s43 come to an end?

[7] Section 43 provides:

43 Amendment of information where defendant appears

(1) Subject to the succeeding provisions of this section, where the defendant appears to answer a charge to which this Part of this Act applies, the Court may amend the information in any way at any time during the hearing.

(2) Without limiting the generality of the powers conferred by subsection (1) of this section, it is hereby declared that those powers shall include power to amend an information by substituting one offence (whether an indictable offence or a summary offence) for another offence (whether an indictable offence or a summary offence), and shall also include power to amend the information to an information to which Part 5 of this Act applies.

(3) Where under subsection (2) of this section any information is amended by substituting one offence for another, then, subject to the provisions of subsection (4) of this section, the following provisions shall apply:

(a) Subject to the provisions of paragraphs (b), (c), and (d) of this subsection, the hearing shall be continued as if the defendant had originally been charged with the substituted offence:

(b) If the substituted offence is one to which section 66 of this Act applies, the defendant shall, before the hearing is continued, be

provisions of that section, with the necessary modifications, shall accordingly apply as if for the words “before the charge is gone into” in subsections (1) and (2) of that section there were substituted in each case the words “before the hearing is continued”:

(c) Before the hearing is continued, the substance of the charge as amended shall be stated to the defendant and he shall be asked how he pleads; and, if he pleads guilty, the Court may convict him or deal with him in any other manner authorised by law:

(d) Any evidence already given shall be deemed to have been given in and for the purposes of the hearing of the charge as amended, but either party shall have the right to examine or cross- examine or re-examine any witness whose evidence has already been given in respect of the offence originally charged.

(4) Where under subsection (2) of this section any information is amended to an information to which Part 5 of this Act applies, the case shall be dealt with under that Part in all respects as if the defendant had originally been charged under that Part with the indictable offence stated in the amended information.

(5) The Court may, at the request of the defendant, if it is of opinion that he would be embarrassed in his defence by reason of an amendment made or proposed to be made under this section, adjourn the hearing of the case.

[8] This Court in Jones v Police [1998] 1 NZLR 447 held that the power of amendment ran beyond the point when the Judge reserved a decision and lasts until the decision is given (452, lines 22-24). In his judgment for a court of five, Tipping J began with what was seen as the policy behind s43: "amendments should be allowed when appropriate and subject to the procedural safeguards contained in the section". He mentioned that under s335 of the Crimes Act 1961, in an environment which is likely to involve more serious offending, the trial court, and even this Court on appeal, has the power to amend the indictment to make it coincide with the proof. He continued that the same power of amendment applies when the High Court is sitting on appeal from a summary conviction in District Court. "This, of course, is at a much later stage of the proceedings at a point between the time judgment is reserved and it is delivered. When a conviction already entered can be amended on appeal it would be odd if an information could not be amended when the Judge is considering whether to enter a conviction." Subject to a possible argument considered next, it follows from Jones that the Judge in this case did have power to amend the information at the time he did.

[9] Mr McAnally, in his careful argument for the appellant, emphasised a passage in Jones in which the Court said:

The structure and scheme of the relevant provisions of the Summary Proceedings Act lead us to the view that the concept of “the hearing” is designed to cover the whole process of inquiring into and determining the guilt or otherwise of persons brought before the District Court summarily on information. (emphasis added)

[10] Here, the argument ran, the "guilt" was "determined" by the making of a guilty plea. But that passage is to be related to particular facts before the Court where guilt remained to be determined by the Judge. The entry of a guilty plea by the defendant cannot in principle be equated with the entry of a conviction or the imposing of another decision by the Court. Nor does the legislation make such an equation. Section 67 of the Summary Proceedings Act provides that if defendants plead guilty the Court "may" convict them or deal with them in an other manner authorised by law. In Collector of Customs v Woolley [1980] 1 NZLR 417, 419, Cooke J said that in this provision Parliament treats a plea of guilty in summary proceedings as distinct from a conviction and Richardson J, to the same effect and recalling that the predecessor provision in the Justices of the Peace Act 1927 used the word "shall", held that the Court is not obliged to enter a conviction either immediately or ultimately. Its discretion is not fettered in that way and the statutory language is wide enough to allow the court to exercise the power of adjournment under s45 and, in the context of that particular case, so postpone a final determination of the information until other charges against the defendant had been dealt with (425; see also McMullin J at 429-430).

[11] We accordingly conclude that the District Court Judge did have power to amend the informations at the time that he did.

Review for collateral purpose or irrelevant considerations?

[12] But is the Judge's decision, in the circumstances of this case, to amend the informations to facilitate the forfeiture application reviewable? Ms Markham, for the Crown, says no for four reasons:

1. the discretion under s43 is very broad;

permit a review of the discretion to prosecute;

3. the amendment could be refused only if it amounted to an abuse of the Court's process or resulted in real prejudice to the appellant neither of which circumstances exist here;

4. the purpose in this case was neither improper nor collateral.

[13] Mr McAnally submitted that the Crown propositions, particularly the second, wrongly move the emphasis from the court to the prosecutor. We think that there is force in that submission since the power in s43 is conferred on a court and is exercisable in a judicial way following due process. The power is not necessarily exercisable at the request of the prosecution and might be exercised on the application of the defence or indeed by the court of its own motion as in Jones. Even if the power is closely related to the prosecutorial discretion to initiate the process it appears likely on its face to be subject to closer judicial scrutiny than a purely prosecutorial decision. We need not however take this matter any further since we have come to the clear conclusion that facilitating the forfeiture process under the Proceeds of Crimes Act could not in any event be said to be improper or collateral or to amount to an abuse of process – however the ground for review is to be stated.

[14] We recall that the record demonstrates that the prosecution had intended from the outset to file the proceedings indictably; an administrative error had however intervened and the prosecution made the amendment application to the District Court Judge to correct that error. We cannot see that the District Court committed any error in receiving that explanation. Indeed it would be curious were a court to make a decision of the kind made here without reason being given in support of the application and the decision. The power conferred by s43 is broad. It is not limited to ensuring concurrence between charge and proof. That appears for instance from the very fact that there can be an alteration simply from a summary information to an indictable one.

[15] The essential answer to this ground of review is that the Proceeds of Crimes

Act is designed as part of the penalty to be imposed on certain offenders. It is not

from its substance and its terms. It is an Act for the "confiscation of the proceeds of serious criminal offending", to quote its title. The powers it confers are available only against persons convicted on indictment of serious offences and provide for the forfeiture of property tainted in respect of the offence and a pecuniary penalty against the person in respect of benefits the person derived from the offence (s8(1)). The connection between the power and the offending is emphasised as well in the definition of "tainted property"; it includes property used to commit the offence and the proceeds of the offence (s2(1)). The penal purpose also appears, significantly, in the principal matter which Parliament states the Court may have regard to in determining an application for forfeiture – "any sanction imposed pursuant to the person's conviction ..., being a sanction in the nature of a pecuniary penalty or forfeiture of property" (s14(1)(b)). When a pecuniary penalty order is sought, the penalty is similarly to be reduced by the value of any pecuniary penalty already imposed in respect of the benefit and any pecuniary penalty resulting from the conviction (s25(2)(b) and (c)).

[16] The criminal and penal character of the legislation appears as well from the provisions for appeal, as this Court emphasised in Black v R (1997) 15 CRNZ 278. The Court stated that the purposes of the forfeiture provisions (and we would add the pecuniary penalty provisions as well) are necessarily deterrence and punishment; deterrence is to be achieved by imposing a penalty (281).

[17] Against that background the purpose motivating the prosecution's amendment application and the Court's granting of the amendment cannot possibly be said to be collateral or improper. It follows that this ground for review also fails.

Result

[18] The appeal is dismissed. If any question about costs arises, counsel may submit memoranda.

Solicitors:

Keegan Alexander, Auckland for the Appellant

Crown Law Office, Wellington for the Respondents