Police v TM DC Wellington CRI-2010-085-7473 [2012] NZDC 523 (5 April 2012)

Last Updated: 3 January 2020

IN THE DISTRICT COURT AT WELLINGTON

CRI-2010-085-007473

NEW ZEALAND POLICE

Informant

v

[T M]

Defendant

Hearing: 5 April 2012

Appearances: B M Piper for the Informant I M Antunovic for the Defendant

Judgment: 5 April 2012

ORAL JUDGMENT OF JUDGE P A H HOBBS

[1] Mr [T M] has been charged with assault with a weapon. He appeared today to defend that charge, but due to the unavailability of an interpreter, his defended hearing could not proceed. Mr Antunovic, who represents Mr [T M], has applied for a stay of these proceedings on the grounds that there has been undue delay. Section 25(b) New Zealand Bill of Rights Act 1990 provides that everyone who is charged with an offence has, in relation to the determination of the charge, the right to be tried without undue delay.

[2] There can be no doubt that there is a significant and ongoing history to this matter. Mr [T M] first appeared on 29 November 2010 and, by my brief calculation, there have been approximately 18 appearances since that date, with the last today for a defended hearing.

POLICE V [T M] DC WN CRI-2010-085-007473 [5 April 2012]

[3] The first hearing of the matter was set down on 10 May 2011. That hearing could not proceed due to the fact that the interpreter, who had been arranged, was not present. I should make it clear at this stage that the interpreter was required for the defendant’s purposes and was required to speak Kiribati. On 27 September, when the matter was called in Court, at that time the Court was advised that a Kiribati interpreter would not be available for some five weeks as of 11 October 2011. The matter was adjourned to a nominal date on 11 October. On that date, there was some issue with a date due to both the unavailability of the police and counsel for Mr [T M] .

[4] A new date was finally confirmed on 15 December 2011. The defendant and the police both appeared and were ready to proceed on that date but, once again, no interpreter was available despite, I understand, arrangements having been made for that to occur.

[5] Mr [T M] appeared today to defend the charge and again the matter could not proceed due to the unavailability of an interpreter, notwithstanding arrangements having been made again for the presence of that interpreter.

[6] It should be made clear, therefore, that any delays that have occurred in this case cannot be laid at the feet of the police or the defence. Both, on occasions, have sought adjournments and both, on occasions, have had some difficulty with finding time to have this case heard. The real issue, in my view, is the unavailability of an interpreter or resources in order to ensure that Mr [T M] understands the case against him and can properly take part in his defended hearing.

[7] An application for a stay will usually only succeed where prejudice to the accused, or the defendant in this case, arising out of the delay would jeopardise a fair trial, and that the passing of time itself is not sufficient.

[8] In the decision of W v R (1998) 16 CRNZ 33 (HC) Randerson J set out a comprehensive summary of the relevant principles when considering a stay and delay under s 25(b) New Zealand Bill of Rights Act. One of the issues that can be taken into account is whether or not the period of delay is so long it can be legitimate

for the Court to infer prejudice without the proof of specific prejudice. I have also taken into account the other matters that were set out in that case.

[9] While no specific prejudice has been put forward in this case in relation to a fair trial, one can certainly infer that there would be prejudice to Mr [T M] if this case were delayed further. I am also mindful of the fact that there does not seem to me to be any resolution offered in the future for this case. There has been no explanation given to me as to why the interpreters are not available, and nor has there been any suggestion that would be remedied in the near future. It is suggested on the record, that there is only one such interpreter available in this area. That may well be the case, I do not know. What I am sure of, however, is that it is unsatisfactory that this matter has been adjourned on the occasions I have referred to, due to lack of an interpreter being present particularly when an interpreter had been confirmed by the Court and was expected to be present.

[10] While it is clearly in the interests of the public that cases of this kind, and of a serious nature, are ultimately determined by the Court, there comes a point in time when any further delay, or the delay that has already occurred, must be regarded as undue. The issue is the proper availability and resourcing of the interpretation services, particularly in the light of the recent Supreme Court decision about the requirement for interpreters. I am satisfied that, in this case, the delay has been undue and a permanent stay of proceedings is the proper remedy.

[11] Accordingly, these proceedings are stayed on a permanent basis.

P A H Hobbs District Court Judge