Toa v Police HC Hamilton CRI 2010-073-443 [2011] NZHC 455 (5 May 2011)

Last Updated: 17 June 2011

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI 2010-073-443}

CHARLES TOA

Appellant

v

NEW ZEALAND POLICE

_Defendant

Hearing: 3 May 2011

Counsel: D. Venter for appellant

R. Annadale and Ms Tarrant for Respondent

Judgment: 5 May 2011 at 3:00 PM

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 6 May 2011 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Crown Solicitor, Hamilton

_{Eastside Law, Hamilton}

TOA V NEW ZEALAND POLICE HC HAM CRI 2010-073-443 5 May 2011

[1] On 29 November 2010 Mr Toa was convicted following a defended hearing in the District Court on a charge of theft of vehicle keys. On the same date His Honour Judge Tompkins ordered him to pay reparation of $356.24, witness expenses of $50.00 and Court costs of $132.89.

[2] Mr Toa appeals to this Court against his conviction. He contends that he was acquitted of the same charge at an earlier hearing. As a result, he says that the police ought not to have laid the charge on which he was eventually convicted.

Background facts

[3] Both charges arose out of an incident that occurred on 15 July 2010. On that date a technician employed by an electricity lines company went to Mr Toa’s residential address. Mr Toa had been engaged in a long-running dispute with the lines company, and this had led to him serving a trespass notice on it. The technician who went to Mr Toa’s property on 15 July had forgotten about the trespass notice. As soon as he was confronted by Mr Toawhen he arrived at the property, he got back into his vehicle and went to leave the property. Mr Toa prevented him from doing so by removing the ignition keys from the vehicle. As a result, the technician left the property on foot, and the police were called.

[4] The theft charge was laid because Mr Toa has refused to return the keys.

[5] The first charge that the police laid was due to be the subject of a defended hearing in the District Court at Te Kuiti on 5 October 2010. On that date the lines company technician was not present, and Judge Wolff dismissed the charge.

[6] The police subsequently re-laid the charge on 28 October 2010. It was then the subject of the defended hearing before Judge Tompkins on 29 November 2010 that resulted in Mr Toa’s conviction.

The issues

[7] Mr Toa contends that, when Judge Wolff dismissed the first charge on

5 October 2010, he dismissed it on the merits. As a result, it was not open to the police to lay another information that alleged the same offence.

[8] The respondent submits that Judge Wolff dismissed the first charge in circumstances that did not prevent the second charge being laid. The respondent also submits that, if Mr Toa had wished to take this point, he ought to have entered the special plea of autrefois acquit when the second charge was heard in the District Court. The respondent submits that it is now too late for Mr Toa to avail himself of that special plea.

[9] In order to understand these issues, it is necessary to briefly set out the relevant statutory provisions relating to the circumstances in which a charge laid under the Summary Proceedings Act 1957 (“the Act”) may be dismissed.

The relevant legislation

[10] Part 2 of the Act prescribes the procedure the District Court must follow in determining charges laid under the Act. Within Part 2, ss 60-71 govern the procedure that the Court must follow when hearing an information.

[11] Section 65 applies where, as here, both parties appear. It provides:

Where at the hearing of any charge both the informant and the defendant appear, the

Court shall proceed with the hearing:

Provided that, if the defendant is not personally present, the Court may, if it thinks fit, adjourn the hearing to such time and place and on such conditions as it thinks fit to enable him to be present, or, if he is liable on conviction to a sentence of imprisonment, may issue a warrant in the prescribed form to arrest him and bring him before the Court.

[12] Although s 65 is cast in mandatory terms, s 45 of the Act permits the Court to adjourn the hearing of any charge from time to time. Where both parties are present and an adjournment is not granted, however, s 65 requires the Court to proceed with

the hearing. The Court has no power, in those circumstances, to dismiss an information unless it conducts a hearing at which it hears the evidence adduced by the parties and the submissions that they make.[1] If the Court dismisses an information without first conducting a hearing of that nature, the dismissal is invalid.[2]

[13] Section 68 prescribes the steps that the Court may take at the conclusion of a hearing. It provides:

(1) The Court, having heard what each party has to say and the evidence adduced by each, shall consider the matter and may convict the defendant or dismiss the information, either on the merits or without prejudice to its again being laid, or deal with the defendant in any other manner authorised by law.

[14] As can be seen from the wording of s 68, four options are available in the event that the Court proceeds to a hearing. They are:

(a) To convict the defendant; or

(b) To dismiss the information on the merits; or

(c) To dismiss the information without prejudice to it being laid again; or

(d) To deal with the defendant in any other manner authorised by law.

[15] With that legislative background in mind, it is appropriate to consider the hearing that Judge Wolff conducted on 5 October 2010 in order to determine what the outcome of that hearing was.

What was the outcome of the hearing on 15 July 2010?

[16] In order to properly understand this issue, it is necessary to set out the transcript of the hearing on 5 October 2010 in full. It shows that the following

_{exchanges occurred:}

Sergeant Cronin:

Yes, sir, the police have two witnesses on this matter, sir. It relates to an incident

where a lines company employee went to Mr Toa’s and wanted to do a final reading. The meters at the property had been cut off and Mr Toa took the keys from his vehicle and wouldn’t give them back and they still haven’t been recovered, sir.

Order made excluding all witnesses other than the officer in charge. Sergeant Cronin:

Sir, we have two witnesses, sir. I call Steven Eames. I understood he was here, sir.

If I could just have a brief adjournment, sir, and find out where he is. See if he’s

around at all.

Court adjourns

Court resumes

Sergeant Cronin:

Mr Toa, sir, unfortunately the witness is not here. I’m offering no evidence.

The Court:

No evidence offered, case dismissed. You’re free to go Mr Toa.

[17] As can be seen from the transcript, the Judge did not expressly state whether he was dismissing the charge on the merits or without prejudice to it being laid again. Mr Toa contends that, the prosecution having offered no evidence, the Judge dismissed the case on the merits. Counsel for the respondent submits that the Judge dismissed the charge without conducting a hearing. As a result, in terms of the principles set out in Attorney-General v Bradford and Taita v Police, he had no jurisdiction to exercise any of the powers under s 68 of the Act. There was therefore no barrier to a second charge being laid.

[18] I do not accept the respondent’s submission on this point. I consider that the defended hearing commenced with the prosecutor’s opening address. The prosecutor then attempted to call evidence. When he found that the witness was not present, he made a positive election not to call any evidence. That being the case, there was no basis upon which the Judge could convict Mr Toa, and he was bound to dismiss the charge. He could do that either on the merits or without prejudice to the charge being laid again.

[19] The position in the present case is completely different to that in Attorney- General v Bradford, where the Judge purported to dismiss charges without conducting a hearing of any nature.

[20] It would have been open to the Judge, had the prosecutor asked him to take that step, to dismiss the charge without prejudice to it being laid again. In the absence of express words to that effect, the only inference to be drawn is that the Judge intended to dismiss the charge on the merits. It was not, therefore, open to the police to lay another charge alleging the same offence.

[21] I am conscious that, in taking this approach, I may be departing from obiter comments made by John Hansen J in Taita. At first sight that case has factual similarities to the facts of the present case. John Hansen J recorded these as follows[3]:

On the 14th July, 1995, a not guilty plea was entered, and a date was given for a fixture on the 6th September, 1995. This was communicated to both the Police and the defendant, and the time was fixed at 10am.

On that date, after two other cases were called, the appellant’s case was called. The only witness for the informant was a Police Officer, and by 10.20am that witness had not arrived. The Police Prosecutor indicated that the Police were in a position where they were not able to proceed, and, therefore, could offer no evidence. Counsel for the appellant indicated that the charge should be dismissed with prejudice in order to prevent the police being able to relay the charge. The Learned District Court Judge did not accept that, and dismissed the charge “without prejudice”, indicating that the Police would be able to relay the charge.

[22] John Hansen J held that the appeal was doomed to fail because he was bound by the decision of the Court of Appeal in Port Line Limited v Browning[4]. In that case the Court of Appeal had held that the dismissal of an information without prejudice under s 68 does not give the defendant a right of appeal under s 115 of the Act. As obiter, however, the Judge said[5]:

However, Mr O’Driscoll sought to persuade the Court there were other grounds on which the appeal should be dismissed. S68(1) states:

The Court, having heard what each party has to say and the evidence adduced by each, shall consider the matter and may convict the defendant or dismiss the information, either on the merits or without prejudice to its again being laid, or deal with the defendant in any other manner authorised by law.

Mr O’Driscoll submitted that s 68 did not apply in this case because the Court did not hear the evidence adduced by each. Although the Learned District Court Judge clearly purported to exercise his power under s 68, I think Mr O’Driscoll’s submission is correct, and that a different section should have been used. However, an analysis of those sections clearly shows the same result is inevitable.

[23] The factual summary set out at [21] suggests that the prosecutor in Taita advised the trial Judge that the police were not in a position to offer evidence. It does not record whether the prosecutor expressly asked the Judge to dismiss the charge without prejudice to it being laid again. It seems likely, however, that the prosecutor took that step, because that is how the Judge ultimately disposed of the charge.

[24] There may therefore be two important distinctions between the factual situation in Taita and that in the present case. First, the transcript in the present case shows that the prosecutor did not ask the Judge to dismiss the information on a “without prejudice” basis. Second, the prosecutor in the present case went further than merely advising the Judge that he was not in a position to offer evidence. Rather, he told the Judge that he was electing not to offer evidence. The distinction may be fine, but it is important.

[25] For these reasons I consider that a hearing did take place in the present case, and that the Judge dismissed the information on the merits after conducting that hearing. Had the prosecutor wished to preserve the respondent’s position, he ought to have sought an adjournment of the hearing or, if that was refused, he ought to have asked the Judge to dismiss the information without prejudice to it being laid again.

Should the appeal be allowed?

[26] Counsel for the respondent correctly points out that, if Mr Toa wished to rely upon the earlier dismissal, he should not have entered a plea of not guilty to the charge. Instead, he should have entered the special plea of autrefois acquit.

[27] Although Mr Toa was represented by the duty solicitor on his initial appearance on the second charge, he represented himself thereafter. As a lay litigant

he could not have been expected to know of the existence of the special plea, or even of the legal significance of the fact that the first charge had been dismissed. I therefore do not criticise Mr Toa for failing to follow the appropriate technical procedure.

[28] The transcript of the hearing before Judge Tompkins reveals that Mr Toa did not mention that an earlier charge had been laid and dismissed. The Judge had no other way of knowing that that had occurred. There can therefore be no criticism of the Judge for failing to appreciate that the plea might be open to Mr Toa.

[29] I take the view that the outcome of the appeal must be determined having regard to the interests of justice. If it was not open to the police to lay the second charge, it would be unjust for Mr Toa to remain convicted on it.

Result.

[30] The appeal is allowed. The conviction and orders made in the District Court on 29 November 2010 are quashed.

Lang J

Solicitors:

---

[1] _{Taita v Police (High Court Dunedin, AP 64/95, 8 November 1995)}
[2] Attorney-General v Bradford (High Court Christchurch, A263/84, 25 October 1983, at 6)
[3] _{At 1-2}
[4] _{[1962] NZLR 739}
[5] At 2