W v Police HC Hamilton CRI 2009-419-23 [2009] NZHC 1662 (22 April 2009)

Last Updated: 1 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI 2009-419-000023}

BETWEEN W

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 22 April 2009

Appearances: Appellant in person

Ann-Marie Beveridge for Respondent

Judgment: 22 April 2009

_{JUDGMENT OF HARRISON J}

SOLICITORS

Almao Douch (Hamilton) for Respondent

_{(copy to Appellant in person)}

W V POLICE HC HAM CRI 2009-419-000023 22 April 2009

[1] Mr W appeals against his conviction in the District Court at Hamilton on 17 December 2008 on one charge of driving while disqualified and the sentence of three months disqualification imposed on 29 January 2009.

[2] Mr W ’s notice of appeal is brief. He says now that it sets out the essential grounds of his argument. He has failed to comply with the statutory requirements to file a full written synopsis or outline of his argument: see Practice Note No.11 issued by the Chief Justice on 19 December 2003.

[3] The appeal was originally scheduled for hearing in this Court on 27 March

2009. Mr W sought an adjournment on the grounds that his sister-in-law was terminally ill and had been admitted to hospital in Christchurch. Wylie J granted an adjournment and the appeal was scheduled for hearing at 10 am on 7 April 2009.

[4] The hearing did not proceed on 7 April because of Mr W ’s own unavailability. He was hospitalised at the time. A further fixture was allocated for

11.45 am today.

[5] Mr W is now in police custody. He has been arrested on unrelated charges. He has sought a further adjournment on the ground that he is not in a position to argue his appeal. He says that he requires access to other documents.

[6] I dismissed Mr W ’s application. This appeal has been adjourned twice before. It follows a series of extraordinary adjournments of the criminal proceeding in the District Court. Indeed, Mr W relies primarily on the grounds of delay in hearing the charge in that forum to support this appeal. I am satisfied that Mr W is in a position to advance oral argument on the grounds raised in his notice. He is very familiar with them and the Court process, having argued them before in the District Court and elsewhere: see R v W [2008] NZCA 307. Also, Ms Beveridge has provided him with a copy of the Crown’s synopsis of submissions in opposition.

[7] The first and primary ground raised by Mr W is what he describes as

“systemic delay of 2½ years with more than 30 appearances” in the District Court on

the charge of driving while disqualified which was finally determined by Judge

Cadenhead at a hearing on 29 September 2008.

[8] Judge Cadenhead set out a full chronological history of the proceeding following Mr W ’s first appearance in the District Court at Hamilton on one charge of driving while disqualified on 29 June 2006. There were, on Judge Cadenhead’s analysis, 21 appearances up until 29 September 2008. It is unnecessary for me to traverse the reasons for those adjournments other than to observe that a number of them were at Mr W ’s request. On 18 January 2008 Judge Wolff dismissed Mr W ’s application to dismiss the charge due to undue delay. Judge Hole reached a similar decision on a further application by Mr W on

26 February 2008. Finally, Judge Cadenhead himself dismissed such an application by Mr W on 29 September 2008.

[9] It is of significance that Judge Cadenhead carefully analysed the relevant principles relating to delay in their factual context. He was satisfied that there was no prejudice suffered by Mr W as a result. Ms Beveridge for the Crown submits that there is no jurisdiction on appeal to interfere with Judge Cadenhead’s discretionary conclusion. Even if there was, I am not satisfied that the Judge erred in any respect. Mr W himself has not identified any material prejudice other than to observe that if he had been able to enter a plea of guilty at an earlier date he would probably have been convicted and discharged without imposition of a sentence of disqualification. That is not prejudice in the sense of a disadvantage suffered by him in defending the substantive charge.

[10] In fact, Judge Cadenhead records Mr W ’s admission at the hearing that he drove his vehicle while he was disqualified. His substantive defence was that he acted in an emergency situation. Judge Cadenhead, following authority in this Court, rejected that defence in the absence of formal evidence in support. His conclusion was corroborated by evidence which he accepted from the arresting officer that when apprehended Mr W gave a very different explanation for his driving from that tendered at trial.

[11] Mr W ’s second ground of appeal is to the effect that Judge Cadenhead advised him that he would have convicted and discharged him without disqualification if he had pleaded guilty earlier. This is simply a variation on the ground already discussed. It is not a discrete ground of appeal in itself. It was, as Ms Beveridge submits, open to Mr W to enter a plea of guilty at any time after the charge was laid; the existence of his appeal to the Court of Appeal following an earlier conviction for the same offence was no bar: R v W [2008] NZCA 307. Moreover, even if the Judge gave such advice (and there is no official record to that effect), it is irrelevant.

[12] Mr W ’s third ground is that that the Judge agreed there were special circumstances but failed to impose a sentence which reflected them. This ground proceeds on a misunderstanding of the decision. As Ms Beveridge submits, any special reasons must relate to the circumstances of the offence, which the Judge rejected, not sentence: s 81 Land Transport Act 1998. Arguably, the Judge erred in Mr W ’s favour in imposing a sentence of three months disqualification commencing on 28 February.

[13] Accordingly Mr W ’s appeal against conviction and sentence is dismissed.

Rhys Harrison J