Underhill v Police [2014] NZHC 2559 (20 October 2014)

Last Updated: 25 November 2014

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-488-000011 [2014] NZHC 2559

WAYNE UNDERHILL Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	20 October 2014
Appearances:	No appearance by the Appellant Catherine Gisler for the Respondent
Judgment:	20 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 20 October 2014 at 12:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

UNDERHILL v NEW ZEALAND POLICE [2014] NZHC 2559 [20 October 2014]

[1] On 1 September 2013 the appellant was issued with an infringement notice for failing to produce a current log book on demand pursuant to s 79Q(a) of the Land Transport Act 1998. He requested a hearing and the informant filed a Notice of Hearing in the Whangarei District Court.

[2] On 18 December 2013 a hearing proceeded in the Whangarei District Court in the appellant’s absence. He was convicted and sentenced to a fine of $400 plus Court costs of $130.

[3] Although it is not explicitly stated in the Notice of General Appeal it appears the appellant appeals against both conviction and sentence.

[4] At the hearing today the appellant did not appear either. However, advice was received by the Court that he has had a family bereavement and, in the circumstances, indicated he was unable to attend. However, because of the peculiar circumstances in this case and with the consent of the Crown the matter may be disposed of expeditiously.

[5] Mr Underhill has not filed submissions but it would appear from attachments to the Notice of Appeal that he appeals on the basis he was not properly informed of the hearing date by the Whangarei District Court as is required by s 167 of the Criminal Procedure Act 2011 (“CPA”). Accordingly, I have treated this appeal as one against conviction and sentence.

[6] The procedure for dealing with infringement notices is still governed by s 21 of the Summary Proceedings Act 1957. Section 21(8)(b) requires the informant to serve on the appellant a copy of the notice of hearing. That provision appears to have been complied with in the present case.

[7] The hearing in the District Court was originally set down on 28 November

2013 but was rescheduled to 18 December 2013. On 28 November 2013 the appellant was sent a notice advising him of the new date as is required by s 167 of the CPA.

[8] However, the notice was sent to the wrong address although it appears the appellant received it. Coincidentally, he was also scheduled to appear in the Tokoroa District Court the same day and thus informed the Registrar of the Whangarei District Court on 30 November 2013 that the new date was not suitable. Notwithstanding this, and for reasons which are not immediately apparent, the hearing on 18 December 2013 proceeded and the appellant was convicted and sentenced in his absence.

[9] The CPA sets out the power of the Court where an appellant does not appear for a Category 1 offence (of which an infringement offence is one).

[10] Where a defendant has been tried and sentenced in their absence the Court must, pursuant to s 124(3)(a) and (4), direct a notice be served on the defendant advising them of the outcome of the trial and of the sentence imposed in their absence as well as the timeframe for applying for a re-hearing.

[11] Plainly, had the appellant attended the District Court in Tokoroa on

18 December 2013 he would have had a reasonable excuse for his non attendance in the Whangarei District Court on the same date. It would have been in the interests of justice for a re-trial and a re-hearing to have been ordered.

[12] This morning the Court received an email from Mr Underhill in which he explained the reasons for his inability to attend today and his confirmation that on

18 December 2013 he did, in fact, appear in the Tokoroa District Court. Ms Gisler, for the Crown, advised me from the bar that she has undertaken her own enquiries with the Tokoroa District Court in an attempt to confirm whether or not Mr Underhill appeared in Tokoroa on that date. Unfortunately, the Court’s records are unable to provide this and thus the only source of advice comes from Mr Underhill himself.

[13] In the circumstances, I am prepared to rely on Mr Underhill’s advice and from that I conclude that he had a reasonable excuse for his non attendance in Whangarei on 18 December 2013. In the circumstances I am of the view that there has been a miscarriage of justice pursuant to s 232(2)(c) of the CPA, namely that there was an error, irregularity or occurrence in relation to or affecting the trial which

resulted in an unfair trial. Similarly, in relation to the sentence, it follows that there was also an error in terms of s 250(2)(a).

[14] I record the Court’s gratitude to Ms Gisler for the Crown who has provided comprehensive and helpful submissions on the legal issues and whose responsible stance in relation to this appeal has assisted the Court.

[15] The appeal against conviction and sentence is allowed and the matter is remitted back to the District Court for re-hearing.

Moore J

Solicitor:

Marsden Woods Inskip Smith, Whangarei

Copy to:

Mr Underhill