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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-419-62

BETWEEN	S 
	Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	23 September 2010
28 October 2010 (by telephone)

Counsel:	N Brodnax for Appellant
J O'Sullivan for Respondent
C T Gudsell QC, Amicus Curiae

Judgment:	28 October 2010

(ORAL) JUDGMENT OF HEATH J

Solicitor:
Crown Solicitor, PO Box 19173, Hamilton
Counsel:
N Brodnax, PO Box 14155, Hamilton
C T Gudsell QC, PO Box 19085, Hamilton

S V NEW ZEALAND POLICE HC HAM CRI 2010-419-62  28 October 2010

[1]       On 23 September 2010, I heard Mr S  ’s appeal against conviction on a charge of theft of petrol.  The appeal appeared to turn on a question of law, namely whether the information sworn to charge the offence under s 223(d) of the Crimes Act 1961 was a nullity.  That issue was squarely before the District Court when the information was called on 14 June 2010.  Judge Marshall remanded Mr S   at large until 21 June 2010, so that he could give a considered decision on the “nullity” point.

[2]       On 21 June 2010, Judge Marshall held that the information was not a nullity. He entered a conviction and ordered reparation of $99.34.   However, there is no record of any plea of guilty having been entered before the conviction was entered.

[3]       In fairness to the District Court Judge it appears that what occurred is that Mr S   had intimidated an intention to plead guilty to the charge if the Judge ruled that the information was not a nullity.  But neither the prosecuting sergeant present nor counsel who appeared before Judge Marshall at the hearing on 21 June 2010 can recall a guilty plea actually being entered; something that is consistent with the Court record.

[4]       The  “nullity”  point  is  of  some  public  importance.    Indeed,  I  appointed Mr Gudsell QC as amicus curiae to assist the Court on that issue.  However, the way in which matters have since developed have persuaded me that the appeal should be dealt with on a much more narrow basis.

[5]       An appeal against conviction must succeed if there was no finding of guilt or plea  of  guilty  on  which  the  conviction  could  be  based.     Notwithstanding Mr S  ’s intimation, no such plea can be found on the record; nor (if this were permissible; on which I make no finding) can one be proved by extrinsic evidence. In those circumstances, the appeal against conviction must succeed.

[6]       I have given consideration to the possibility of requesting a report from the District Court Judge on his recollection of events.  I am told by counsel, however, that the issue was addressed in the course of a busy list, after the Judge had ruled that

the information was not a nullity.  In those circumstances, it is highly unlikely that the Judge would have any independent recollection of the issue from that contained on the Court record.

[7]       I have considerable sympathy for the situation in which the District Court Judge found himself.  Nothing said in this decision should be regarded as a criticism of the way he conducted himself.

[8]       The amount of the reparation imposed, which constituted the totality of the sentence, of $99.34 militates against remission of the information for reconsideration in the District Court.  If I were to do that, it is likely that the same finding on the validity of the information would be made and another appeal to this Court would be inevitable.

[9]       For those reasons, the appeal against conviction is allowed.  The conviction entered in the District Court and the sentence imposed in consequence are quashed.

[10]     I am aware that Mr Gudsell has undertaken material preliminary work in relation to some of the issues on which he has been instructed.  His costs shall be met out of funds appropriated by Parliament for that purpose.  Leave is reserved to
Mr Gudsell to apply to me, should any issue arise as to the quantum of his costs.

P R Heath J