PEKA v NEW ZEALAND POLICE [2019] NZHC 2128

PEKA v NEW ZEALAND POLICE [2019] NZHC 2128 [28 August 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-26[2019] NZHC 2128LARS MARLON PEKAvNEW ZEALAND POLICEHearing (via AVL): 27 August 2019Counsel: W R Hawkins for AppellantM M Mitchell for RespondentJudgment: 28 August 2019JUDGMENT OF CHURCHMAN JIntroduction[1] On 15 July 2019, the appellant, Mr Peka, was convicted and sentenced byJudge Adeane in the Napier District Court to six months' community detentionfollowing a Judge-alone trial on four charges of failing to comply with reportingobligations arising from his registration on the Child Sex Offender Register (theRegister).1[2] He appeals against this conviction on the ground that the Judge erred by rulingthat the notice of reporting obligations on the Register was valid and, therefore, amiscarriage of justice has occurred. It is contended that the notice was invalid as it1 New Zealand Police v Peka [2019] NZDC 14389; Child Protection (Child Sex OffenderGovernment Agency Registration) Act 2016, s 39: maximum penalty one year's imprisonment anda $2000 fine.was not accompanied by an instrument of delegation from the Chief Executive of theDepartment of Corrections (the Chief Executive).[3] The respondent's position is that no such document was required to accompanythe notice and, therefore, it was valid. Alternatively, it is submitted that even if thenotice was invalid, provided the contents of the notice have unequivocally beenbrought to the attention of the defendant, he is obliged to comply with it and anyinvalidity does not absolve the defendant of his obligation to comply.Background[4] Mr Peka has been on the Register since December 2018 and, as such, wasrequired to report the address of each of the premises at which he generally residedand, if he did not generally reside at any particular premises, the name of each of thelocalities in which he could generally be found. This information was required to bereported 48 hours prior to any changes.[5] He was also required to report the details of any telecommunication servicesused, including the phone number and service provider, providing such informationwithin 72 hours of any change.[6] On 26 January 2019, Mr Peka advised that he had been asked to leave hisapproved address but had been given time to find another suitable address. The Policereminded him at this time of his obligation to report any changes to his residentialaddress 48 hours prior to any change. Mr Peka also said that he did not have acellphone but intended speaking with Work and Income New Zealand later that day inan effort to get a phone.[7] On 19 February 2019, Police completed a home visit and were advised thatMr Peka had moved out around 4 February 2019. Enquiries revealed that he had sincetravelled to Mahia, Wairoa and Flaxmere. Further enquiries showed that Mr Peka hadalso been using at least three different cellphone numbers. He had not attempted toreport any of these changes, nor had he reported his use since December 2018 ofFacebook messenger to communicate with people.District Court decision[8] The Judge had to rule whether the service of notice of Mr Peka's reportingobligations required the exercise of functions or powers of the Chief Executive whichhave not been validly delegated. He accepted the Police submission that this was notan executive power or function requiring proof of valid delegation, but was:2 purely a machinery act giving effect to the provisions of the ChildProtection Act which, rightly or wrongly, have clear retrospective effect andwhich in themselves entirely define the status of the defendant and hisobligations thereafter.[9] He concluded:[3] The finding I reach on this point is that this is not a situation whereformal delegation needs to be established simply production of the noticewhich has in fact been served. My full reasons for this decision will bedelivered in due course if called for and address the other submissions madeby the defendant, including a submission that the retrospective effect of theChild Protection Act which is clear in terms of that legislation is somehowaffected by the New Zealand Bill of Rights Act 1990 and its distaste forretrospective legislation. In my view that aspect, which is also relied on bycounsel is conclusively disposed of by s 4 of the New Zealand Bill of RightsAct.Approach to appeal[10] This appeal is brought under s 232(2)(b) and (c) of the Criminal Procedure Act2011 which provides that an appeal must be allowed if the Court is satisfied that theJudge erred in his assessment of the evidence to such an extent that a miscarriage ofjustice has occurred or that a miscarriage of justice has occurred for any reason. Suchan appeal proceeds by way of rehearing.[11] A "miscarriage of justice" is defined as meaning any error, irregularity, oroccurrence in or in relation to or affecting the trial that:3(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.2 New Zealand Police v Peka, above n 1, at [2].3 Criminal Procedure Act 2011, s 232(4).Discussion[12] As Mr Peka was convicted of a qualifying offence and was serving thatsentence as a prisoner on 14 October 2016, the Child Protection (Child Sex OffenderGovernment Agency Registration) Act 2016 (the Act) applies retrospectively to him.4Schedule 1, cl 2 of the Act relevantly provides:2 Notices to be given(1) As soon as practicable after 14 October 2016, the chief executive ofthe Department of Corrections must cause written notice to be givento every registrable offender referred to in clause 1(1)(a) of—(a) the offender's reporting obligations; and(b) the penalties for failing to comply with those obligations.[13] Counsel for the appellant, Mr Hawkins, submits that it is a power or functionof the Chief Executive to serve the notice in question, and it was necessary for aninstrument of delegation for the notice to be valid. It is submitted that it was incumbenton the Chief Executive to delegate the function to serve the notice to an employee toact on her behalf.5[14] Mr Hawkins' submission that it is a power or function of the Chief Executiveto cause written notice to be given under the Act is based on the Supreme Courtdecision of Re Solicitor-General's Reference (No 1 of 2016) which analysed theapplication of s 90 of the Land Transport Act 1998.6 That case concerned twoappellants who challenged the validity of the notice of suspension that was served onthem by the Police rather than the New Zealand Transport Agency (NZTA). One ofthe indirect issues that arose was whether the notices of suspension could be cured ofany invalidity if the Director of the NZTA delegated his or her authority to any Policeofficer to serve the notice of suspension on his or her behalf. On this issue, Williams Jin the High Court held:74 Child Protection (Child Sex Offender Government Agency Registration) Act, sch 1, cl 1.5 The prerogative for the Chief Executive to do so is set out in s 41 of the State Services Act 1988and s 73 of the Crown Entities Act 2004.6 Re Solicitor-General's Reference (No 1 of 2016) [2017] NZSC 58, [2018] 1 NZLR 147.7 Police v Haunui [2015] NZHC 2456 at [36].Of course the Constables could have given notice of all these matters if therehad been a valid delegation of that function, but, as I have said, it is commonground that there had not.[15] The Court of Appeal held that the NZTA had the power to delegate its functionto serve a notice of suspension to the Police:8 the Agency has always had the ability to delegate the duty to give notice.Originally by s 205 of the [Land Transport Act 1998], although that wasrepealed in 2008. More latterly the power to delegate is vested in ss 73 and74 of the Crown Entities Act.[16] While the Police submitted in the District Court that the requirement to causewritten notice to be given does not fall within the scope of a statutory power and ispurely an administrative function, Mr Hawkins submits that the Supreme Court inRe Solicitor-General's Reference (No 1 of 2016) addresses this issue as follows:9[19] Section 210 therefore made it clear that the Director might "cause"the notice to be delivered as well as giving notice directly. When the Directorgave the notice directly he was not of course required to act personally in thedelivery: the provisions of the State Sector Act 1988 and the common lawmake it clear that designated officials can act through departmental officers.The additional authority to "cause" delivery to be made in one of the waysenvisaged by s 210 (whether by personal service, post, or leaving the notice atan address) is authority to authorise service by non-departmental officials.[17] By virtue of this obiter dictum, Mr Hawkins submits that the delivery or"cause" of notice is the exercise of a statutory power or function of the ChiefExecutive. As it is accepted that she has not delegated her authority to any employeeof the Department of Corrections, it is therefore submitted that the notice served onMr Peka is invalid. The Judge, in finding otherwise, is said to have made a significanterror that had a material effect on the trial, leading to a miscarriage of justice.[18] The respondent, however, submits that a plain reading of cl 2 establishes thatthe relevant notice is not required to be given by the Chief Executive herself, ratherthat she must simply cause the offender to be given such. On such a reading, it is saidto be irrelevant whether the notice was provided by the Chief Executive or by anemployee of the Department of Corrections, provided that the Chief Executive hasfacilitated the provision of such.8 Re Solicitor-General's Reference (No 1 of 2016) [2016] NZCA 417, [2017] 2 NZLR 1 at [29].9 Citation omitted.[19] It is noted that, in contrast, other legislative provisions impose obligations onthe Chief Executive personally. Section 107F of the Parole Act 2002, for example,provides that "[t]he chief executive may apply to the sentencing court for an extendedsupervision order in respect of an eligible offender". It is contended that the specificthird-person address requires that an application of this kind may only be made by theChief Executive herself, or by an employee of the Department of Corrections whopossesses the relevant delegation under s 41 of the State Sector Act 1988.[20] The respondent submits that this contrast in drafting reflects a Parliamentaryintention that the Chief Executive's role with respect to the notice requirementsattendant to registration on the Register be purely administrative. That is consistentwith the fact that provision of such notice requires no exercise of discretion, noimposition of additional burdens on third parties, no investigative processes, and isotherwise an essentially secretarial task. It is submitted that this may readily becontrasted with provisions such as the power to apply for extended supervision orders,where a high degree of discretionary decision-making (with significant attendantconsequences for the subject) is involved.Analysis[21] I accept the respondent's submissions on this point. A plain reading of theclause would indicate that the Chief Executive was required to ensure that a procedurewas in place whereby offenders placed on the Register were to be informed of theirreporting obligations. The wording of the clause is "must cause written notice to begiven" rather than "must give written notice", which suggests that the act of givingnotice is to be carried out by someone other than the Chief Executive and does notrequire formal delegation. That giving of notice is an administrative requirement,rather than the exercise of a statutory power or function. Re Solicitor-General'sReference (No 1 of 2016) does not provide assistance, as it deals with differentprovisions made under another Act.[22] Mr Peka was informed of his reporting obligation and the penalties for failingto comply with those obligations in writing when he was placed on the Register, andwas reminded, at least of the residence reporting obligation, by Police on 26 January2019. The written notice that was served on him was not invalid and the District CourtJudge made no error in finding that the Act was one of a "machinery" nature whichdid not require the Chief Executive to formally delegate her authority to employees ofthe Department of Corrections. There having been no error, there has accordinglybeen no miscarriage of justice.Result[23] Accordingly, for the reasons given above, this appeal is dismissed.Churchman JSolicitors:Bramwell Bate, Hastings for AppellantCrown Solicitor, Napier for Respondent