Tessema v Police [2012] NZHC 2603; [2012] NZAR 957 (8 October 2012)

Last Updated: 26 October 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-147 [2012] NZHC 2603

WONDIM TESSEMA

Appellant

v

THE POLICE

Respondent

Hearing: 17 September 2012

Appearances: K Noordhof for appellant

J W Wall for respondent

Judgment: 8 October 2012

_{JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4.00 pm on Monday 8 October 2012

Solicitors:

Public Defence Service Auckland [e-mail]

_{Crown Solicitor Auckland}

WONDIM TESSEMA V THE POLICE HC AK CRI 2012-404-147 [8 October 2012]

Introduction

[1] The appellant was convicted of possession of a class C controlled drug, cannabis, contrary to s 7(1)(a) of the Misuse of Drugs Act 1975 (MDA), after a hearing before Judge Fraser in the Auckland District Court.[1]

[2] He now appeals against that conviction on the grounds that the Judge was wrong to admit as evidence of analysis, a certificate transmitted to the appellant’s counsel by facsimile.

[3] The appellant takes two separate points:

(a) The relevant legislative provisions governing service of the certificate do not authorise service by facsimile; and

(b) in any event, the facsimile was not sent to the appellant seven clear days before the hearing as is required by the legislation.

Background

[4] On 1 October 2011, the appellant was arrested and charged with possession of cannabis. On 6 October 2011, the respondent received a letter from the Public Defence Service which had been instructed to represent the appellant. That letter read:

6 October 2011

File Management Centre

Private Bag 92002

Auckland

Attention: Disclosure

By facsimile: [phone]

_{Dear Sir/Madam}

REQUEST FOR FULL DISCLOSURE

Name: Wondim Tessema

DOB: 23/06/1993

CRN/S: 11004016272-74

CHARGE/S: BREACH LIQUOR BAN USED PNUS

NEXT COURT HEARING DATE: 18/10/2011

The Public Defence Service has been assigned to act for the above named. We are authorised to receive disclosure as per the Criminal Disclosure Act

2008 on behalf of the defendant/accused in respect of these charges. The address for service is the Auckland office of the Public Defence Service:

- Auckland office; DX: CX10075, Level 10, Swanson House,

12-26 Swanson Street, Auckland City

We confirm that the lawyer assigned to this case is: David Dickinson. Please contact the lawyer on DDI: 09 302 1968 and Email:

[e-mail].

Yours faithfully

(signed)

Public Defence Service

[5] A facsimile number was included on the printed letterhead upon which the letter was typed.

[6] A sample of the substance seized from the appellant on arrest was sent to the ESR which subsequently confirmed by way of a written certificate that the sample was cannabis.

[7] On Sunday 15 April 2010 at about 4.50 pm, a police officer sent the certificate by facsimile to the facsimile number appearing on the 6 October 2011 letter from the Public Defence Service. It is common ground that the facsimile transmission advised that the respondent did not intend to call the analyst at the hearing set down for 23 April 2012.

[8] The appellant did not give notice to the respondent that he sought to challenge the contents of the ESR certificate, either before or during the defended hearing. Instead, a challenge was mounted at the outset of the hearing in the District

Court to the admissibility of the ESR certificate. That challenge was rejected by

Judge Fraser who said in his judgment:

[4] Sergeant Newton’s evidence then was that he searched the defendant and located on the defendant’s person, in his pocket a tinnie which we know was cannabis based on the ESR analysis produced in evidence. The admissibility of the ESR analysis was questioned by defence counsel on the basis that it was faxed to them. It is conceded that it was faxed outside of the seven day requirements, in terms of s 31(3) Misuse of Drugs Act as noted on the confirmation sheet attached to the faxed analysis.

[5] I determined the evidence was admissible, given that the faxed copy complied with the provisions of 28(2) Summary Proceedings Act 1957. The disclosure document requesting disclosure clearly indicated that defence counsel was prepared to accept service of the document. The Summary Proceedings Act is somewhat silent as to what constitutes services in this instance, but purposive of (sic) interpretation of the section satisfies me that that analysis was served on the defendant’s counsel and the communication sighted by the Court constituted a memorandum accepting service in this way.

Mode of service

[9] Section 31 of the MDA creates a rebuttable statutory presumption as to the character of a substance which forms the basis for a charge laid under the Act. Section 31 also contains certain service provisions. As relevant, the section provides:

31 Evidence of analysis

(2) Subject to subsections (3) and (4) of this section, in any proceedings for an offence against this Act, a certificate purporting to be signed by an analyst, and certifying that, on a date stated in the certificate, the substance,

... was received ... and that upon analysis that substance, ... was found to be

... a particular controlled drug ...shall until the contrary is proved be sufficient evidence—

(a) Of the qualifications and authority of the person by whom the analysis was carried out; and

(b) Of the authority of the person who signed the certificate to sign that certificate; and

(c) Of the facts stated in the certificate.

...

(3) A certificate referred to in subsection (2) of this section shall be admissible in evidence only if—

(a) At least 7 clear days before the hearing at which the certificate is tendered, a copy of that certificate is served, by or on behalf of the prosecutor, on the defendant, and the defendant is at the same time informed in writing that the prosecutor does not propose to call the person who made the analysis as a witness at the hearing; and

(b) The defendant does not, by notice in writing given to the prosecutor at least 3 clear days before the hearing, require the person who made the analysis to be called by the prosecutor as a witness at the hearing.

[10] Section 31(5) provides that a certificate must be served, for the purposes of the section, in accordance with ss 24 to 29 of the Summary Proceedings Act (SPA)

1957. Section 24(1) of the SPA requires service to be effected by personal service, or by leaving the document at the defendant’s place of residence with a member of his family living with him and appearing to be of or over the age of 18 years, or by sending it to him by registered letter addressed to him at his last known or usual place of residence, or at his place of business. It is common ground that service was not effected in accordance with any of those alternatives.

[11] Section 28(2) of the SPA provides:

(2) Where a solicitor represents that he is authorised to accept service of any document on behalf of any person, it shall be sufficient service to deliver the document to him if he signs a memorandum stating that he accepts service of the document on behalf of that person.

[12] Ms Noordhof submits that the 6 October letter does not fall within s 28(2) because there is no memorandum stating that the Public Defence Service accepted service of the certificate on behalf of the appellant. She submits that:

(a) The 6 October letter was limited to the provision of documents required to be furnished to the defence under the Criminal Disclosure Act 2008 (CDA), and was silent as to acceptance of service of documents specifically required to be served under the MDA;

(b) Section 28(2) permits a document to be delivered to a defendant’s solicitor instead of the defendant, where the subsection is otherwise complied with, but there is nothing in the 6 October letter to suggest

that the solicitor would accept service of the certificate in question by facsimile.

[13] Mr Wall’s response to these submissions is founded upon the provisions of

s 10 of the CDA, which provides:

10 Service

(1) Information required to be disclosed to, and any notice or application required to be given to or served on, any person under this Act may be given to or served on the person—

(a) by personal delivery to that person or, if the person refuses to accept the document or notice, by bringing the document or notice to that person's attention; or

(b) by post or facsimile addressed to that person, or by electronic means, at an address nominated by the person or, if no such address has been nominated, at the person's last known postal address or place of residence or business.

(2) Information required to be disclosed to, and any notice or application required to be given to or served on, a defendant under this Act may, if the defendant is represented by counsel, be given by any of the methods described in subsection (1) to the defendant's counsel.

[14] It will be noted that service by facsimile is permitted by both subsections (1)

and (2) above.

[15] Mr Wall submits that because the ESR certificate was required to be disclosed under the general disclosure provisions appearing in s 13 of the CDA, it follows that the certificate was required to be disclosed “as per” that Act, to use the language employed in the 6 October letter. He says that compliance with the service requirements in s 10 of that Act satisfies the service requirements of s 28(2) of the SPA, and thereby constitutes compliance with s 31(3) of the MDA.

[16] I do not accept that submission. To uphold it would be to find, in effect, that s 10 of the CDA had impliedly repealed the service provisions of s 31 of the MDA. In the absence of a clear statutory intention to the contrary, general words in an

_{enactment do not repeal earlier statutes dealing with a special subject.}[2] _{In a case}

dealing specifically with s 31(3) of the MDA, the Court of Appeal rejected an argument that the provision could be circumvented or over-ridden by the general hearsay provisions of the Evidence Act 2006.[3]

[14] The hearsay provisions of the Evidence Act do not, however, provide a mechanism for circumventing the requirement under s 31(3) of the Misuse of Drugs Act that a certificate under that section is admissible “only if” a copy of that certificate is served on the defendant at least seven days before the hearing and the defendant does not require the person who made the analysis to be called as a witness. It is well established that this procedure must be strictly observed: see Bell v Police HC AK M1554/79 6 November 1979, R v Ramzan [1985] 1 NZLR 227 (CA), Langley v Griffiths HC AK AP

199/92 16 November 1992.

[15] Orthodox principles of statutory interpretation require the specific provisions of the Misuse of Drugs Act to prevail over the general provisions of the Evidence Act.

[17] Accordingly, I reject the argument that the 6 October letter, by authorising service on the solicitors of disclosure material for the purposes of the CDA, necessarily authorised service on the solicitors of the ESR certificate for the purposes of s 31 of the MDA.

[18] It is important to remember that the service of a certificate under s 31 carries significant evidential consequences. It creates a rebuttable statutory presumption upon service. Important evidential consequences will ensue unless a defendant takes steps to challenge the certificate within the stipulated period. Such a certificate falls therefore into quite a different category of document from the general run of disclosure documents to which the CDA applies. A defendant is entitled to certainty as to both the mode and date of service of a s 31 certificate.

[19] I uphold also Ms Noordhof’s submission that the 6 October letter does not authorise service by facsimile. The mere fact that a facsimile number appears on the letterhead would be insufficient, in my view, to constitute a sufficient consent to facsimile service, even if the letter could be construed as extending to service of a

_{s 31 certificate.}

[20] Accordingly, the Judge was wrong to conclude that the 6 October letter amounted to a consent by the Public Defence Service to the service of the ESR certificate on it.

[21] In passing, I note that s 413 of the Criminal Procedure Act 2011 contemplates amendments to the definition of service in s 31 of the MDA by rules to be made under s 386 of that Act. Section 386(3) expressly permits the making of rules authorising the use of electronic technology for service purposes, but those provisions are not yet in force.

Seven clear days

[22] The District Court hearing took place on Monday 23 April 2012. The ESR

certificate was sent by facsimile to the appellant’s counsel at 4.50 pm on Sunday

15 April 2012. It is common ground that it would have been received by the Public Defence Service on the morning of Monday 16 April 2012 (during office hours). Mr Wall responsibly accepts that service must be taken to have been effected on the Monday and not on the preceding Sunday.

[23] Section 31(3)(a) requires service “at least seven clear days before the hearing at which the certificate is tendered ...”. Mr Wall submits that service on the Monday complies with the requirements of the subsection. He relies on s 35(4) of the Interpretation Act 1999 which provides that a period of time described as ending before a specified day, act, or event, does not include that day or the day of the act or event. He submits that, by implication, the first day of the relevant period may be included. Accordingly, he submits, the relevant period of seven days is to be calculated by including Monday 16 April.

[24] I disagree. I consider that the provisions of s 35(5) of the Interpretation Act are engaged. That subsection provides that a reference to a number of days between two events does not include the days on which the events happened. Here, the two events are the date of service and the date of the hearing. Proper weight must be given to the requirement for seven clear days’ notice. Mr Wall suggested that the word “clear” is mere surplusage, but that cannot be right. It is well established that a

requirement for a specified period of clear days’ notice must be taken to exclude both

the date of the notice and the date upon which it is to take effect.[4]

[25] In my view, the notice, which was served on Monday 16 April 2012, did not give seven clear days’ notice prior to the hearing on Monday 23 April 2012. Accordingly, for that separate reason, I conclude that the respondent was not entitled to rely upon the ESR certificate at the District Court hearing.

Waiver

[26] The service validity issue was raised for the first time by counsel for the appellant at the commencement of the District Court hearing. The respondent was not advised earlier of an intention to challenge the certificate; nor was any notice given of a requirement that the analyst be called to give evidence at the hearing.

[27] In consequence, Mr Wall submits, the appellant has impliedly waived his right to rely on defective service. In support of that submission, he relies upon the decision of Williamson J in Spence v Police, where the Judge held an appellant to have waived proof of a procedural requirement in respect of an ESR certificate.[5]

[28] But that was quite a different case. There, a police constable had telephoned counsel for the accused several times to arrange a time to call personally to serve the certificate and have the appropriate memorandum signed by counsel. Ultimately however, he was told by counsel that he would accept service of the certificate by post. That case is completely different from the present facts, which contain no hint of an arrangement or concession which might properly be considered to amount to a waiver.

[29] Further, the validity of service in that case was not raised in the District

Court, nor in the then Supreme Court, counsel expressly advising the Judge that he did not wish to rely on the point in that Court. Williamson J simply recorded what

had occurred, noting that it was open to counsel for an accused to waive proof of a procedural requirement.

Disposition

[30] For the foregoing reasons the appeal is allowed and the conviction quashed. [31] Mr Wall submits that if the appeal succeeds, the case ought to be remitted to

the District Court for rehearing. He contends that the appellant’s case on appeal is entirely based upon non-compliance with technical provisions as to service, and that there is no merit in the underlying defence.

[32] I am not prepared to follow that course. Here, there were two quite separate breaches of the requirements of s 31 of the MDA, namely the choice of a mode of service not authorised by the section, and a failure to comply with the seven clear days’ notice requirement.

[33] Moreover, this offence falls at the lower reaches of the criminal calendar. Judge Fraser simply imposed a fine of $100. I do not consider a case has been made out for a rehearing in the District Court.

C J Allan J

---

[1] Police v Tessema DC Auckland CRI-2011-004-018532, 23 April 2012.

[2] Auckland Gas Co Ltd v Auckland City Council [1990] 2 NZLR 420 at 425 (CA); R v Pora [2001]

2 NZLR 37 at [41] (CA).

[3] R v Pope [2008] NZCA 284 at [14].

[4] Re Drury Coal Co Ltd (No.2) (1908) 28 NZLR 107 (SC) and Re Amalgamated Distributors Ltd

_{[1931] NZLR 648 (SC).}

[5] Spence v Police HC Christchurch AP9/88, 30 August 1988.