Meagher v Police [2015] NZHC 1685 (20 July 2015)

Last Updated: 24 July 2015

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000037 [2015] NZHC 1685

BETWEEN	BRENDON LEE MEAGHER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 July 2015
Appearances:	L Drummond for the Appellant A C Trinder for the Respondent
Judgment:	20 July 2015

_{JUDGMENT OF NATION J}

[1] On 28 April 2015, Mr Meagher, self represented, filed a notice of appeal against a conviction and sentence imposed on him in the District Court at Christchurch on 13 February 2015.¹

[2] He had been convicted of operating a vehicle in a manner causing sustained loss of traction (s 36A(1)(c) Land Transport Amendment Act 1998). He was fined

$500, ordered to pay Court costs of $130 and disqualified from driving for six months from 20 February 2015. The Judge also made an order for the confiscation of the vehicle he had been driving, requiring it to be surrendered to the Court by 20 February 2015.

[3] Mr Meagher said the grounds of his appeal were “i was not in court on the date. i was convicted of this charge even tho the courts seem 2 think I was??” [sic]

¹ _{R v Meagher [2015] NZDC 2100.}

MEAGHER v NEW ZEALAND POLICE [2015] NZHC 1685 [20 July 2015]

[4] I heard the appeal on 14 July. Mr Meagher had been granted legal aid for the appeal and Ms Drummond appeared for Mr Meagher. Ms Trinder appeared for the Crown.

[5] In submissions for the Crown, Ms Trinder acknowledged that Mr Meagher had not been present at the hearing. She acknowledged that s 123 Criminal Procedure Act 2011 provided that a Court must not sentence a defendant for an offence in category 2 (of which this was such an offence) in the absence of the defendant. She accepted that the sentence had to be set aside and suggested Mr Meagher should be remitted back to the District Court for sentencing.

[6] Ms Trinder opposed the setting aside of the conviction on the basis:

i. it was appropriate for the Judge to proceed by way of formal proof;

ii. the Judge was entitled to proceed on the basis Mr Meagher had notice of the hearing at which the charge was to be dealt with on a defended basis; and

iii. the Judge was entitled to conclude that it would not be contrary to the interests of justice to proceed in the absence of Mr Meagher, having regard to the factors which the Judge was required to consider pursuant to s 121(4) Criminal Procedure Act.

[7] With the Crown’s submissions, was an affidavit from a Constable Kench. He was the only Police Officer involved with the case and had given evidence at the formal proof hearing. In that affidavit, he referred to how he obtained an address of

28 Palmside Street, Christchurch from the defendant when he first charged Mr Meagher with the offence and how he used this address on the summons which was issued to Mr Meagher when he was first required to attend Court on

19 August 2014. He also referred to meeting him at the Rangiora Police Station on

12 December 2014 when he had Mr Meagher countersign an application to vacate a Judge-alone trial date arranged for 12 January 2015. Constable Kench said that at the time he explained what the application was and the reason for it. He said he

advised Mr Meagher the Courts would contact him once a new date had been set for the Judge-alone trial.

[8] In written submissions for Mr Meagher, Ms Drummond submitted:

i. the reason for Mr Meagher not appearing at the Judge-alone trial was that he had not been aware of the new date of hearing;

ii. in reliance on the Court of Appeal judgment in Milliken v R, a failure to consider the statutory criteria, relevant in deciding whether to proceed in the defendant’s absence at trial and to make a formal decision with reasons on that point, meant there had been a fundamental defect in the proceedings

and thus a miscarriage of justice;² and

iii. it was relevant that Mr Meagher had attended Court on all previous occasions when his presence was required, that his defence necessitated his giving evidence and that he had agreed to the Police request to set aside the original hearing date to suit the convenience of the Police.

[9] With Ms Drummond’s submissions, she filed an affidavit from Mr Meagher. In that affidavit he stated that, when he was given a Court date for a defended hearing in January 2015, he did not have a residential bail condition and had no fixed address. He said that he met with the Police Constable at the Rangiora Police Station, was told he did not need to appear in Court on the hearing date of

12 January 2015 and the Constable would telephone him and tell him the new Court date but he did not hear back from the Constable. He said in the affidavit that he later contacted the Police to find out when he would be getting his licence back and was told that he had been disqualified again. He said he then found out what had happened at Court, immediately filed his appeal and applied for legal aid.

Information from the District Court file

[10] The Police summary of facts stated, at 10.05 pm on 23 July 2014, Mr Meagher was the driver of Holden vehicle which had stopped at a red light at the

² Milliken v R [2014] NZCA 236.

intersection of Hills Road and Shirley Road, Christchurch. It was alleged he accelerated heavily, causing the vehicle tyres to spin and lose traction. The wheels continued to spin for about three seconds. The summary stated Mr Meagher maintained high engine revolutions and caused a large amount of smoke to come from the tyres. He left a burnt rubber mark stretching four metres along the road.

[11] The evidence given by Constable Kench at the formal proof hearing was that he had been patrolling on Hills Road at the time, was approximately 25 metres behind Mr Meagher’s vehicle when the lights turned green and saw what had happened. He stopped the vehicle nearby. He said the driver gave his name as Brendon Lee Meagher. He gave Mr Meagher a summons. A copy of that summons was annexed to the Constable’s affidavit. It records Mr Meagher’s address as

28 Palmside Street, Christchurch. Constable Kench also recorded that address and a cell phone number for Mr Meagher in his notebook at the time.

[12] The summons required Mr Meagher to attend Court on 19 August 2014.

[13] The summary of facts and also Constable Kench’s notebook entries refer to Mr Meagher saying to Constable Kench that he had been stationary at the lights when, for some unexplained reason, his car surged and the wheels started to spin. He said this was because the accelerator was playing up. He said he had not pushed the accelerator and did not intend losing traction.

[14] The Constable thus knew Mr Meagher claimed to have a defence to the charge, albeit one that the Constable would have understandably considered was implausible.

[15] The Court records show Mr Meagher appeared at Court on 18 August 2014. He signed an application to the Registrar for adjournment. On that form, in handwriting which appears to be that of Mr Meagher, he has put his address as

32 Palmside Street. He also gave a cell phone number which was the same as recorded by Constable Kench when Mr Meagher was first spoken to. Mr Meagher was remanded by the Registrar to 27 August 2014.

[16] On 27 August 2014, Mr Meagher was remanded for a case review hearing on

7 October 2014. The file indicates that, at the case review hearing on

7 October 2014, Mr Meagher was then remanded on bail to 12 January 2015 for a

Judge-alone trial with an estimate of one and a half hours.

[17] On 12 December 2014, Constable Kench met Mr Meagher at the Rangiora Police Station and had him sign the application to vacate the fixture for the Judge- alone trial because of the Constable’s unavailability on the scheduled hearing date. That application was filed and granted by the Court on 23 December 2014.

[18] A notice dated 5 January 2015 was sent to Mr Meagher at 28 Palmside Street. It stated that the hearing of the relevant charge had been adjourned and then stated:

The previous date of 23 February 2015 given was incorrect. The Registrar has changed the date of the hearing to 13 February 2015 at 10:00 AM, in District Court 4 at the Christchurch District Court.

[19] The notice required Mr Meagher to attend personally at that time and place with witnesses and stated that existing bail terms and conditions remained in force.

[20] On 29 January 2015, the Court had the envelope with that notice with the indication “not known at this address”. On the return notice is a handwritten note “Returned due to incorrect address. New letter sent 29/1/15.”

[21] On the Court file is a similar notice advising the hearing of the charge had been adjourned. The hearing date was to be 13 February 2015 at 10.00 am in District Court 4. The notice informed Mr Meagher he was required to attend the Court hearing personally at that time and place and that existing bail terms and conditions remained in force. This notice was addressed to 32 Palmside Street and sent on 29 January 2015.

[22] On 13 February 2015, the note on the Court file records:

NA. Formal Proof. Found guilty.

Convicted and fined $500 and cc $130.

Disqualified from driving for six months from 20/2/15.

Order for confiscation of motor vehicle make Holden year 1992 Regn number HAN748 to be surrendered to Registrar by 4.00 pm on 20/2/2015.

That note has been signed by the Judge dealing with the matter.

[23] On 28 April 2015, there is a note of the appeal against sentence/conviction.

The law

[24] In seeking to sustain the conviction, the Crown referred to rule 2.5 of the

Criminal Procedure Rules:

2.5 How to serve document

(1) Any document that is required by these rules to be served may be served—

(a) by personal service; or

(b) by sending it to the person's address for service; or

(c) if no address for service has been provided, by sending it to the person’s last known postal address or place of residence or business; or

(d) by being left for the person at the person's place of residence with a member of the person's family living with him or her who appears to be of or over the age of 18 years; or

(e) by any other method agreed by the parties or approved by the court or a Registrar.

(2) Any document is personally served by leaving the document with the person to be served, or, if that person does not accept it, by putting it down and bringing it to the notice of that person.

(3) This rule is subject to rules 2.6 and 2.7.

[25] Also, rule 2.10:

2.10 Proof of service

(1) The service of any document may be proved by the person who served the document—

(a) by affidavit showing the date, time, mode of service, and the identity (if known) of the person served; or

(b) on oath at the hearing; or

(c) by providing an authenticated endorsement on a copy of the document served showing the date, time, mode of service, and the identity (if known) of the person served.

(2) If any document is served by sending it by mail to a postal address, the following provisions apply in the absence of proof to the contrary:

(a) evidence that the document was sent to an address that complies with rule 2.5 is proof that service was completed; and

(b) the document is treated as having been served on the earlier of—

(i) the third working day after the day on which it is sent by mail; or

(ii) the day on which it is received.

(3) If any document is served by sending it electronically, the following provisions apply in the absence of proof to the contrary:

(a) subject to paragraph (b), evidence that the document was sent to a valid address is proof that service was completed:

(b) evidence that the document was sent to a valid address on a day that is not a working day or after 5 pm on a working day is proof that the document was served, but the document must be treated as having been served on the next working day.

[26] Section 121 of the Criminal Procedure Act states:

121 Non-attendance of defendant charged with offence in category 2, 3, or 4: after plea is entered but before trial or sentencing

(1) This section applies to any hearing, other than a trial or a sentencing hearing, if—

(a) the offence charged is a category 2, 3, or 4 offence; and

(b) a not guilty plea has been entered to the offence charged; and

(c) the defendant is required, under section 118, to be present at the hearing; and

(d) the prosecutor attends the hearing, but the defendant does not. (2) When this section applies, the court may do either or both of the

^following:

(a) proceed in the absence of the defendant:

(b) issue a warrant to arrest the defendant and bring him or her before the court.

(3) Despite subsection (2), the court must not proceed with a hearing in the absence of the defendant if the court is satisfied that it would be contrary to the interests of justice to do so.

(4) Without limiting the matters the court may consider in making its decision under subsection (3), the court must consider the following factors:

(a) any information available to the court about the reasons for the defendant's absence:

(b) any issues that the defendant has indicated are in dispute and the extent to which the defendant's evidence is critical to an evaluation of those issues:

(c) the likely length of any adjournment, given the particular interests of victims and witnesses that a trial takes place within a reasonable time of the events to which it relates and the effect of any delay on the memories of witnesses:

(d) the nature and seriousness of the offence: (e) the interests of any co-defendant.

[27] Section 123 states:

123 Sentencing for offence in category 2, 3, or 4 not to proceed in absence of defendant

(1) A court must not sentence a defendant for an offence in category 2,

3, or 4 in the absence of the defendant.

(2) If a defendant does not attend a sentencing hearing for an offence in category 2, 3, or 4, the court may issue a warrant to arrest the defendant and bring him or her before the court.

[28] Relevant appeal provisions referred to by the Crown included ss 229(1) and

232(1), (2), (3) and (4):

229 Right of appeal against conviction

(1) A person convicted of an offence may appeal under this subpart to the first appeal court against the conviction.

...

232 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a) in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c) in any case, a miscarriage of justice has occurred for any reason.

(3) The first appeal court must dismiss a first appeal under this subpart in any other case.

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

[29] Also relevant in this context is s 125 which permits a defendant who has been found guilty following a trial that proceeded in his absence to apply to the Court for a retrial. Such an application has to be filed within 15 working days of receipt of a notice under s 124(3)(a). Such a notice must advise the defendant that he has been found guilty in his absence, of the date for his sentencing and that if he wishes to apply for a retrial he must do so within 15 working days of service of the notice.

[30] There is no indication on the Court file that such a notice was served on Mr Meagher. The Court did prepare a notice of disqualification from holding or obtaining a driver licence. It was addressed to Mr Meagher at 28 Palmside Street but was sent to the Police on 13 February 2015 with a request that they serve it before

20 February 2015 and provide proof of service to the District Court. On the Court file is also an order for confiscation of motor vehicle dated 13 February 2015 addressed to Mr Meagher at 28 Palmside Street, requiring him to surrender the relevant motor vehicle to the Registrar of the Court on 20 February 2015.

[31] There is no proof of service of this order or notice of disqualification but on the notice of disqualification is a note “on 28/4/15 defendant refused to take disqualification”. That note appears to have been signed by a Deputy Registrar.

[32] I infer from this that, on 28 April 2015, Mr Meagher approached the Court to find out what had happened, that a Deputy Registrar tried unsuccessfully to have Mr Meagher accept the notice of disqualification and, as a result of discussing that notice of disqualification, Mr Meagher filed his notice of appeal on 28 April 2015.

[33] In submissions on the appeal, the Crown submitted that, having regard to each of the factors which the Court must consider, in terms of s 121(4), this was not a case where it was contrary to the interests of justice for the hearing to proceed on

13 February 2015 in the absence of Mr Meagher. I deal with those now.

(a) Information available to the Court about the reasons for the defendant’s

absence.

[34] The Crown say there was no explanation for Mr Meagher’s absence on

13 February 2015. That was not surprising given Mr Meagher was not there. Had careful inquiry been made at the time, it would have been apparent that there was potential for a breakdown in communication over the dates, given some confusion over the address to be used for Mr Meagher: 28 or 32 Palmside Street. If the Judge had asked questions of Constable Kench before deciding whether to proceed, he may also have received further information about the difficulties which Constable Kench faced in trying to contact Mr Meagher over the change to the original hearing date. In connection with such an inquiry, the Judge may have discussed just what the Constable did say about how a new hearing date would be allocated. The information the Judge might have received if such an inquiry had been made, may well have led the Judge to believe Mr Meagher was deliberately making it difficult for the Police or the Court to communicate with him over what was happening. But that is speculative. The Judge may have also decided that, given Mr Meagher’s previous appearances and the fact that the original date had been changed at the request of the Police, the wiser course would have been to arrange another date for

the hearing to give the Court and perhaps the Police the opportunity to ensure

Mr Meagher was aware of the hearing date, perhaps by telephoning him.

(b) Any issues the defendant has indicated are in dispute and the extent to which

the defendant’s evidence is critical to the evaluation of those issues.

[35] Had an inquiry been made of the Constable at the time, it would have become apparent to the Judge that the defendant was asserting the loss of traction was unintentional. If that was to be continued with as a defence as Mr Meagher intended, his evidence was essential.

(c) The likely length of any adjournment, particular interests of the victims and witnesses, etc.

[36] There were probably no particular matters in this regard that militated against an adjournment apart from the inconvenience to Constable Kench of having to come back to Court at a different time to give his evidence.

(d) The nature and seriousness of the offence.

[37] As acknowledged by counsel for the appellant, in terms of the alleged offending, this was at the lower end of the scale. Nevertheless, conviction would result in disqualification and potentially the loss of the defendant’s vehicle, so there were significant consequences for him. The authors of Adams note:³

The public interest and the prompt disposal of serious charges may weigh in favour of the Court proceeding without the defendant, although it is not an overriding consideration.

Equally however, there may be little prejudice to a defendant charged with a minor offence from the Court proceeding in his or her absence.

(e) The interests of any co-defendant.

_{[38] Of no relevance in this case.}

³ Adams on Criminal Law (online looseleaf ed, Brookers) at [CPA 121.02], referring to R v Kumar

[2011] 1 NZLR 701 (HC).

Discussion

[39] This charge was not the most serious. The public have an interest in avoiding the inconvenience and wastage of time and resources for the Court and witnesses that result from scheduled hearings and available Court time not being utilised because of a defendant’s non-appearance. In considering the interests of justice, the Judge would also have been entitled to take into account that the defence apparently to be advanced by Mr Meagher probably had little prospect of success. A Judge adequately informed as to the background of the situation before him may have decided that it would be in the interests of justice for the case to proceed in the defendant’s absence, knowing that, if the defendant was legitimately and reasonably prejudiced by this, he would have the opportunity to apply for a rehearing.

[40] The problem is that there is nothing on the Court file to indicate that the Judge did consider whether or not it would be in the interests of justice, in the particular circumstances of this case, for the hearing to proceed in Mr Meagher’s absence. There is also nothing to indicate whether he had considered the mandatory factors in s 121(4). Given, contrary to s 123, the Judge sentenced Mr Meagher in his absence, it seems likely the Judge failed to consider s 121 and particularly s 121(4).

[41] I do have regard to the judgment of the Court of Appeal in Milliken v R.⁴ In that case, three defendants were facing serious charges in the High Court. Mr Milliken skipped bail. Six days before a jury trial for all defendants was due to start, on the application of the Crown, a Judge directed that the trial would proceed in relation to all three defendants in the absence of Mr Milliken. The Court of Appeal judgment notes that the only record of the Court’s decision, concerning trying Mr Milliken in his absence, was a note on the indictment that “trial will proceed (in August) without Milliken present if not located beforehand”. No reasons for the decision were issued or given orally in the Judge’s notes of the same date.

[42] The Court of Appeal stated:

[18] At the time of Mr Milliken’s trial the relevant statutory provision was s 376 of the Crimes Act 1961. That has now been repealed and a more

⁴ Milliken v R, above n 2.

detailed scheme is found in ss 119–130 of the Criminal Procedure Act 2011. Counsel were agreed the current provisions largely codify the previous law. A full exposition of that law is found in this Court’s decision in R v Kumar.⁵

[19] In Kumar this Court identified the appellate issue as being not the correctness of the initial decision to proceed in a defendant’s absence, but whether the defendant had a fair trial. Mr Lillico urged us to take the same approach here, but the circumstances are quite different. In Kumar the trial Judge had given a fully reasoned decision at the start of the trial and after Mr Kumar had not appeared. This Court used that decision as its framework for analysis whilst adding into the equation information gained subsequently either from the trial record or further evidence.

[20] The proposition that we follow the same path here would involve putting to one side the significant procedural errors that have occurred. There was here no proper consideration of the relevant factors and indeed at the time of trial when Mr Milliken failed to appear no decision at all concerning whether it was appropriate to abrogate Mr Milliken’s fundamental right to be present at his trial.⁶ That error is compounded by the failure of the Court to give reasons when the issue was first assessed three months earlier.

[21] We consider the failure at the time of trial to consider the relevant criteria and to make a formal decision about whether to proceed in Mr Milliken’s absence is so fundamental a defect that it amounts to a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act. The appropriate relief is to quash the convictions on the basis that the hearing of Mr Milliken’s charges has proceeded in such a manner as to undermine the legitimacy of the trial per se.

[43] There were further reasons why, with the way the trial proceeded, there was a miscarriage of justice as far as Mr Milliken was concerned. It is nevertheless apparent that the Court of Appeal considered the failure of the Judge to consider relevant factors or to record reasons for his decision could, of themselves, amount to a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act 1961.

[44] The reference in s 385(1)(c) to miscarriage of justice is the predecessor of s 232 Criminal Procedure Act, which is relevant to this appeal.

[45] In Milliken v R, the Court of Appeal said the decision to try certain joint charges in absentia “was certainly open and probably right”.⁷ They also said, with the way the trial developed, ultimately a fair trial of Mr Milliken’s charges did not occur. Consistent with the Court of Appeal’s approach, if in this instance there had

_{been some notation or recorded decision to indicate the Judge had considered the}

⁵ _{R v Kumar, above n 3.}

⁶ _{New Zealand Bill of Rights Act 1990, s 25(e).}

⁷ Milliken v R, above n 2, at [26].

provisions of s 121 and in particular the factors which he was required to consider under s 121(4), I would have been able to find there had been no miscarriage of justice with the hearing proceeding by way of formal proof in the absence of the defendant.

[46] Without any record of matters having been considered in that way, I have no option but to find a miscarriage has occurred and to set aside the conviction which was entered on 13 February 2015. That inevitably means the sentence must also be set aside. The proceedings will be accordingly remitted back to the District Court.

[47] Independently of the setting aside of the conviction, the sentence must be set aside because it was imposed in the absence of Mr Meagher, contrary to s 123

Criminal Procedure Act. That section should have been brought to the attention of the Judge. Had he decided, after the required consideration of relevant issues, that the hearing could proceed in the absence of the defendant, it would still have been necessary for the matter to be adjourned for sentence. That was what was contemplated with the notice which had to be served on the defendant, as required by s 124(3).

[48] On an appeal against sentence, s 250 states:

250 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

[49] In this instance, there was an error in the sentence because it was imposed in the defendant’s absence. I cannot say that I would have found a different sentence should be imposed. Ms Drummond acknowledged that, given Mr Meagher received the minimum term of disqualification, she could not argue that, had matters proceeded appropriately, a different sentence should have been imposed.

[50] Mr Meagher’s sentence has to be set aside because his conviction is being set aside but, given s 123 required his presence when he was sentenced, I consider s 250(2)(b) would not have precluded my setting aside that sentence.

[51] Mr Meagher’s appeal is accordingly allowed and the conviction and sentence is quashed. The matter is remitted to the District Court for a rehearing.

[52] The defendant is ordered to appear in the District Court at 10.00 am on

16 September 2015 for a defended rehearing of this matter.

[53] Ms Drummond indicated that either she or Mr Starling is likely to be representing Mr Meagher on legal aid. She confirmed that she would be able to advise the Court of the appropriate address for service and contact telephone number for the defendant which can be used by the Court to give him notice of any matter relevant to the proceedings.

Solicitors:

M Starling/L Drummond, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch