STEWART v NEW ZEALAND POLICE [2019] NZHC 603

STEWART v NEW ZEALAND POLICE [2019] NZHC 603 [26 March 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2018-404-433[2019] NZHC 603BETWEEN MELVIN STEWARTAppellantAND NEW ZEALAND POLICERespondentHearing: 26 March 2019Counsel: A Speed for AppellantD Wiseman for RespondentJudgment: 26 March 2019Reasons: 27 March 2019REASONS JUDGMENT OF DUFFY J[on adjournment]This reasons for judgment was delivered by me on 27 March 2019 at 3.00 pm.Registrar/ Deputy RegistrarSolicitors/Counsel:Andrew Speed, Barrister, AucklandCrown Solicitor, Auckland[1] This appeal was adjourned to a date to be fixed by the registry.[2] The appellant, Mr Stewart, brings an appeal under s 296 of the CriminalProcedure Act 2011 (CPA). He is currently facing a charge of dangerous driving inthe District Court. The appeal relates to a decision of Judge Taumaunu where herefused to dismiss this charge.[3] The Judge was asked to dismiss the dangerous driving charge because it hadbeen substituted for a charge of common assault. This substitution happened some 17months after the incident which has given rise to the charge. It is common ground thata charge of dangerous driving must be laid within a six-month limitation period.Accordingly, it would not be possible to lay a fresh charge of dangerous driving solong after the incident.[4] Relying on authorities under the former legislation Mr Stewart argues that itwas wrong in principle for the Judge to substitute the charge of common assault withdangerous driving when the latter charge could not be laid against him by reason ofthe limitation period.1[5] The merits of the issue on appeal are readily understood. However, there is adifference in the way Mr Stewart and the Police regard the procedural mechanism thatwas applied by the Judge, which in turn impacts on the appeal right.[6] In his decision the Judge refers to Mr Stewart's application as one broughtunder s 147 of the CPA.2 The Police treated the appeal as one brought against a refusalto dismiss under s 147 of the CPA. Accordingly, the police have argued that it is notpossible to bring an appeal under s 296 of the CPA against a refusal to dismiss a chargeunder s 147 of that Act.[7] On the other hand, Mr Stewart maintains that he did not make his argument fordismissal under s 147 of the CPA. He contends that the dangerous driving charge is anullity (because it is outside the limitation period) and should be dismissed for that1 See Cunningham v Police AP 36/93 unreported decision High Court Tauranga Registry; and seediscussion in R v Holt CA59/06 30 May 2006.2 See [27] of Police v Stewart [2018] NZDC 25938.reason. He says a decision on that type of application is not one that is to be madeunder s 147 of the CPA, the focus of which is whether on the available evidence areasonably directed jury could convict.[8] Until the procedure that was followed in the District Court is properlyidentified it is not possible for this Court to determine whether there is jurisdiction toentertain the appeal. This may require obtaining a transcript of the hearing beforeJudge Taumaunu in order to learn how the application was framed before him. If itwas not framed as a s 147 application, it may be that the Judge has erred in dealingwith it on this basis.[9] It appeared to be common ground before me that there is difficulty appealinga refusal to dismiss under s 147 of the CPA.3[10] In Watson v Clarke this Court discussed the District Court's inherent power tocontrol its process including to dismiss proceedings.4 My reading of Watson v Clarkesuggests to me that Judge Taumaunu could have heard and determined Mr Stewart'sapplication for dismissal of the dangerous driving charge using the District Court'sinherent power to prevent abuse of its processes. The alleged abuse here would be aprosecution based on a time barred charge.[11] However, the question would then be whether a pre-trial refusal to exercise theinherent power to dismiss a charge as an abuse of process would give rise to a right toappeal under s 296 of the CPA.[12] Because Mr Stewart's complaint was about the substitution of the dangerousdriving charge for common assault, there was discussion before me about whether thedecision to permit the substitution was the proper decision to appeal. This decisionwas made in May 2018. However, the Police correctly pointed out that any appealagainst that decision would now be out of time, unless leave to appeal out of time weregranted.3 In this regard see D (CA716/2015) v R [2016] NZCA 190; Rowell v Commissioner of InlandRevenue [2016] NZCA 471; and Lincoln v Police [2017] NZHC 2153.4 Watson v Clarke [1990] 1 NZLR 715.[13] The other procedural mechanism for challenging the outcome of the Judge'sdecision would be judicial review. In Auckland District Court v Attorney-General theCourt of Appeal upheld a decision of this Court which recognised that a decision by aDistrict Court Judge to dismiss a charge under s 347 of the Crimes Act 1961, whichwas the former provision equivalent to s 147 of the CPA, was susceptible to judicialreview.5 Because judicial review has no limitation period in the way an appeal doesMr Stewart could pursue a challenge by judicial review against the decision to allowthe substitution and the refusal to dismiss the substituted charge.[14] If Mr Stewart is correct in regarding the dangerous driving charge as an abuseof process and a nullity because its time limitation precludes it being substituted foranother charge outside the limitation period there may be good reason for this Courtto act now to prevent the prosecution going ahead. Otherwise, Mr Stewart would haveto go through a Judge alone trial and then to appeal any resulting conviction.[15] However, this Court can only intervene at the pre-trial stage if a jurisdictionalpathway is apparent. It was for this reason that I adjourned the appeal. Both counselagreed on this course of action. An adjournment will enable the parties to identify theappropriate jurisdictional pathway, if any, that the Court can then follow.Duffy J5 Auckland District Court v Attorney-General (1992) 9 CRNZ 344.