GREEN TRANSPORT LIMITED v NEW ZEALAND POLICE [2023] NZHC 990

GREEN TRANSPORT LIMITED v NEW ZEALAND POLICE [2023] NZHC 990 [1 May 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2022-419-000085[2023] NZHC 990BETWEEN GREEN TRANSPORT LIMITEDAppellantAND NEW ZEALAND POLICERespondentHearing: 27 April 2023Appearances: J Ding for AppellantP Noorland for RespondentJudgment: 1 May 2023JUDGMENT OF VENNING JThis judgment was delivered by me on 1 May 2023 at 11.45 am.Registrar/Deputy RegistrarDateSolicitors: Hamilton Legal, HamiltonLe Pine & Co, TaupoCounsel: J Ding, Auckland[1] Green Transport Limited (Green Transport) faced two infringement notices:(a) exceeding maximum gross mass limit, maximum penalty of $10,000;1and(b) breached critical condition of overweight permit, maximum penalty of$5,000.2[2] The matter was first called in Taumarunui District Court on 21 April 2022 andadjourned for a formal proof hearing. At the rescheduled date of 9 June 2022, MrGotlieb appeared for the appellant. The case was adjourned and scheduled to be calledagain on 18 August 2022. When the case was called on 18 August 2022 there was noappearance by Green Transport. The Police sought to formally prove theinfringements. The Judge agreed and found the infringements proved.[3] Green Transport then applied for a rehearing in the District Court. In a rulingdelivered on 1 November 2022 Judge Northwood declined the application forrehearing.3 The Judge considered that there was no reasonable excuse for GreenTransport's non-attendance on 18 August 2022 so that the grounds for granting theapplication pursuant to s 126(6) of the Criminal Procedure Act 2011 (CPA) were notsatisfied. Nevertheless, the Judge went on to consider the interests of justice andconcluded that the interests of justice did not support a rehearing either. The applicantcould have reasonably been expected to ensure that the onboard scale was accurate. Itwas unable to rely on a total absence of fault defence. For those reasons the Judgedeclined the application for rehearing.[4] Green Transport then filed a notice of general appeal in this Court on 1November 2022. The decision appealed against was stated to be: "Ruling decliningan application for re-hearing," and the grounds of the appeal were:His Honour Judge Northwood erred in considering the application for re-hearing and finding there was no reasonable excuse for non-attendance at the1 Land Transport Act 1998, s 43; Land Transport Rule: Vehicle Dimensions and Mass 2016, cls2.1(2) and 4.2(2)(b); and Land Transport (Offences and Penalties) Regulations 1999, reg 4(6).2 Land Transport Rule: Vehicle Dimensions and Mass 2016, cls 2.1(2), and 5.5(1)(a), and LandTransport (Offences and Penalties) Regulations 1999, reg 4.3 Green Transport Ltd v NZ Police [2022] NZDC 21386.hearing on 18 August 2022, and it was not in the interests of justice to orderthe re-hearing.[5] At the outset of the hearing I raised with Ms Ding whether there wasjurisdiction for this Court to hear the appeal against the decision declining therehearing, particularly given the Court of Appeal authority of Police v Norman.4 Inthat decision the Court confirmed there was no right of appeal to the then SupremeCourt from a refusal to grant a rehearing.[6] Ms Ding submitted there was jurisdiction, noting the provisions in the CPAwere different to the former provisions in the Summary Proceedings Act 1957 whichhad been referred to by the Court of Appeal in Police v Norman. Further, Ms Dingreferred to a decision of Duffy J, France v Police,5 which she submitted supported thepossibility of a general appeal to this Court from a decision not to grant a rehearing inthe District Court.[7] Despite Ms Ding's submissions I was satisfied there was no jurisdiction.However, just after the Court had commenced delivering an oral judgment at theconclusion of the hearing Ms Noorland quite properly intervened and indicated thatshe had just, during the course of the hearing, located reference to a decision ofOsborne J under the relevant provisions of the CPA, Shackleton v Police,6 where theJudge appeared to have assumed jurisdiction to consider an appeal against a decisiondeclining a rehearing. On that basis I formally reserved the decision in order toconsider the decision of Shackleton.[8] I have now had the opportunity to consider Osborne J's decision in Shackleton.For the reasons that follow, I have concluded that if the decision is to be taken assuggesting there is a right of general appeal to the High Court from a decision of theDistrict Court declining a rehearing of a criminal matter, then with respect, it is wrong.There is no jurisdiction for an appeal to this Court against a decision in the DistrictCourt to refuse an application for a rehearing.4 Police v Norman [1975] 1 NZLR 391.5 France v Police [2015] NZHC 2011.6 Shackleton v Police [2020] NZHC 384.[9] The starting point is the former s 115(1) of the Summary Proceedings Act 1957which was before the Court of Appeal in Police v Norman. In that case the Court ofAppeal confirmed and approved previous decisions of the then Supreme Court inTuohy v Police, and Burton v Police, namely that the right of general appeal did notextend to the refusal of a rehearing.7 There was no jurisdiction to entertain an appealagainst the refusal to grant a rehearing.[10] At the time s 115(1) of the Act read:Except as expressly provided by this Act or by any other enactment, where onthe determination by a Magistrate's Court of any information or complaint anydefendant is convicted or any order is made other than for the payment of costson the dismissal of the information or complaint, or where any order for theestreat of a bond is made by any such Court, the person convicted or againstwhom any such order is made may appeal to the Supreme Court.[11] Section 115(1) of the Summary Proceedings Act was amended in 1998 to read:115 Defendant's general right of appeal to the High Court(1) Except as expressly provided by this Act or by any other enactment,where a District Court determines any information or complaint and–(a) Convicts any defendant; or(b) Makes any order, including–(i) An order for repayment of costs; or(ii) An order declining an application for the payment ofsuch costs; or(iii) An order for the estreat of a bond–the person convicted or against whom the order is made may appealto the High Court.[12] The amended section was considered by Chisholm J in Heenan v Police.8 MrHeenan had been found guilty on a number of charges under the Land Transport Actand an assault charge under the Crimes Act 1961. Before he was sentenced in theDistrict Court Mr Heenan had made an application to set aside the judgment and for arehearing. The Judge rejected the application to set aside the judgment or to grant the7 Tuohy v Police [1959] NZLR 865; and Burton v Police [1961] NZLR 698.8 Heenan v Police HC Invercargill AP15/02, 4 February 2003.rehearing. Mr Heenan then lodged an appeal against the conviction and sentence anda separate appeal against the refusal to grant a rehearing. The appeal against refusalto grant a rehearing came before Chisholm J. His Honour referred to the Court ofAppeal authority of Police v Norman and then noted the amendment to the SummaryProceedings Act, before going on to state:9Does this amendment affect the authoritative status of Police v Norman? I donot think so. Once the Judge determined the informations laid against MrHeenan (by finding them proved) and convicted him, a right of appeal to theHigh Court pursuant to s115(1)(a) became vested in Mr Heenan. It was notthe intention of the amendment to confer a further right of appeal to the HighCourt in a situation where an application for rehearing was declined. In otherwords, I am bound by Police v Norman.[13] Chisholm J then went on to note that the absence of jurisdiction did not giverise to a situation where the appellant was left without a remedy as there was thesubstantive right of general appeal against the conviction and sentence.[14] The CPA has replaced the Summary Proceedings Act. Three sections arerelevant: ss 125, 126 and 128 in particular.10 The application for a retrial or rehearingis made under s 125 or s 126 as appropriate. Importantly however, s 128 provides:128 Effect of application for retrial or rehearing on rights of appeal(1) A defendant who applies for a retrial of a charge under section125 must not appeal his or her conviction unless that application for aretrial is denied.(2) A defendant who applies for a rehearing under section 126 must notappeal his or her sentence unless that application for a rehearing isdenied.(3) If an application for a retrial or rehearing is made under section125 or 126, the time period for filing an appeal under Part 6 issuspended until the application is determined.(4) Subsections (1) and (2) do not limit any right of appeal in relation toa further conviction, sentence, or order entered, imposed, or made atthe defendant's retrial or rehearing.[15] Ms Ding referred to that section and submitted that it provided for an appeal.Ms Ding is correct. The section does provide for an appeal but the right of appeal9 At [5].10 As this case involves infringement offences, a conviction is not entered, but s 126 of the CPAapplies: s 375 CPA.provided for is not against a refusal to grant a rehearing, rather the right of appeal isagainst the extant conviction and/or sentence. Section 128(3) extends the time forappealing the conviction or sentence until the District Court has determined theapplication for rehearing, but it does not provide for an appeal against the rehearingdecision.[16] Appeal rights are created by statute. The appeal rights under the CPA are foundin sub-part 6. None of the appeal rights in sub-part 6 of the CPA provide for a right ofappeal against a refusal to grant a rehearing.[17] The reasoning approved in Police v Norman and applied by Chisholm J inHeenan still applies, despite the change in the statutory provisions. The short point isthat as there is a substantive right of general appeal against conviction and/or sentencethere is no right of appeal against a refusal to grant a rehearing.[18] As noted, Ms Ding referred to France v Police.11 In that case Mr France hadbeen convicted of failing to ensure a taillight was working, driving without a driver'slicence, and wearing a damaged helmet while operating a moped. He had beenconvicted by two Justices of the Peace, and had applied for a rehearing in the DistrictCourt, which was ultimately declined by a District Court Judge. Mr France then fileda notice of general appeal in the High Court. Duffy J accepted the respondent'ssubmission that this Court lacked jurisdiction to hear and determine the appeal. TheDistrict Court was the appropriate appeal court. Ms Ding relied on a reference in thedecision to a right of appeal against the rehearing decision and suggested thatsupported her argument there was jurisdiction.[19] In the course of her decision Duffy J referred to a previous decision involvingMr France,12 as follows:13[21] The appeal involved very similar circumstances to the currentappeal. Mr France was found guilty of driving while forbidden and failing toprovide information by two JPs in the District Court. An application for arehearing was declined by Judge Andrée Wiltens. An appeal against thisdecision was dismissed by Brown J.11 France v Police, above n 5.12 France v R [2015] NZCA 282.13 France v R, above n 5.[22] The Court of Appeal stated that the correct procedure under s 230 ofthe CPA would have been for the appeal to go to the District Court. It refusedto grant an extension of time to bring the appeal.[20] Although the passage from Duffy J's judgment suggests that Brown J heard anappeal against the District Court refusal to grant a rehearing, a reading of the Court ofAppeal decision confirms that while Mr France was declined a rehearing in the DistrictCourt the appeal heard and considered by Brown J was a general appeal against hisconviction and sentence, rather than an appeal against the decision not to grant arehearing.[21] Nothing in the decision of the Court of Appeal in France v R, nor Duffy J'sdecision, properly analysed, supports an argument this Court has jurisdiction toentertain an appeal on refusal of an application for a rehearing.[22] That leaves the decision of Osborne J in Shackleton v Police,14 which MsNoorland discovered towards the end of the current hearing before this Court. MrShackleton had filed an appeal in which he sought to challenge both the refusal of therehearing and the conviction. It does appear that in that case the Judge assumed theHigh Court had jurisdiction to consider the appeal against a rehearing. However it isobvious from the judgment that the issue of jurisdiction was not drawn to the Judge'sattention.[23] Next, the Judge was also obviously concerned at the procedural backgroundand the length of time the appellant had been grappling with the complicatedprovisions of the Road User Charges legislation. He also had a substantive appealagainst conviction before him.[24] Given the need for finality (and I detect some sympathy for the position MrShackleton found himself in) the Judge dealt with the substantive merits of the appeal.As the Judge had a general appeal before him it was strictly unnecessary for him todeal with the rehearing matter.14 Shackleton v Police, above n 6.[25] However, ultimately Osborne J made orders granting a rehearing, but alsoallowing the appeal. Procedurally that would seem to have created somewhat of adifficulty. If the appeal against the decision to grant a rehearing was allowed, anyrehearing should have proceeded in the appropriate court, which would have been theDistrict Court.[26] I consider the case can be restricted and be confined to its facts as the issue ofjurisdiction was not referred to the Judge. Further the Judge himself observed:15The appropriate outcome in relation to the infringement notice under the RUClegislation requires this Court on appeal to view Mr Shackleton's case verymuch as a case on its own facts. [27] As noted, if it is to be suggested that the case is authority for the propositionthat this Court has jurisdiction to hear an appeal against refusal to grant a rehearing inthe District Court, then with respect, in my judgment it is wrongly decided and shouldnot be followed.[28] The case can, in any event, be distinguished from the present case on the shortpoint that there was also a general appeal against conviction before the Court.Osborne J had jurisdiction to deal with that appeal on its substantive merits. There isno such general appeal against the findings on the infringement offences before thisCourt. As Ms Noorland submitted, if the appellant wished to pursue an appeal againstthe decision of the District Court finding the infringements proved, and the finesimposed, the full grounds of appeal would need to be set out and the Police wouldwish to have time to respond to them.Result[29] For the above reasons this Court has no jurisdiction to consider the appealagainst refusal to grant a rehearing. It is dismissed for want of jurisdiction.15 At [61].[30] As noted, this does not mean that Green Transport was without a right of appealagainst the findings on the infringement notices. That right of appeal is provided forin Part 6 of the CPA, albeit that because of the procedure that has been followed, it isnow out of time.__________________________Venning J