New Zealand Police v Johnson [2020] NZDC 2153

Published 27 July 2020

Dismissal of charge — undue delay — careless operation of motor vehicle causing injury — Criminal Procedure Act 2011, ss 78 & 147 — New Zealand Bill of Rights Act 1990, s 25 — Williams v R (2009) 24 CRNZ 468 — Martin v District Court at Tauranga (1995) 12 CRNZ 509 (CA) — R v Morin [1992] 1 SCR 771 — R v Jordan [2016] 1 SCR 631 — CT v R [2014] NZSC 155. The defendant had been charged with careless operation of a motor vehicle causing injury. For various reasons the trial had been delayed for two years. Counsel for the defendant applied for a dismissal of the charge under s 147 of the Criminal Procedure Act 2011 ("the Act") on the basis of undue delay, (pursuant to s 25 of NZBORA). The police opposed the application. The alleged offending occurred in early March 2018; the defendant was charged two days later and denied the charge. The two issues for determination were whether she was the driver of the vehicle and whether she was driving carelessly. An initial estimate of 4 hours was made for the time needed for trial, subsequently extended to 6 hours, meaning the registry had to file an administrative adjournment as there was not enough time on the scheduled day to hear the trial in full. Overall, 6 adjournments occurred over the two year period: one related to industrial action, two related to leave, and three were administrative adjournments. In assessing whether this constituted "undue delay", the Court considered Williams v R, which defined "undue" as "unjustifiable", taking into consideration the time, cause and circumstances of the delay. This was applied in Martin v Tauranga District Court, where charges relating to sexual violation were stayed after a delay of 17 months. The Judge noted that Martin followed the Canadian Supreme Court case of R v Morin and although the Canadian Court had since adopted a presumptive ceiling of 18 months for trial cases in provincial courts, the court in this case was bound by the New Zealand cases of Martin and Williams. The court considered the factors for determination of whether the delay was too long as set out in Morin: the length of delay, waiver of time periods, reasons for the delay, including the inherent time requirements of the case, actions of the accused, actions of the Crown, limits on institutional resources and other reasons for the delay, and finally, prejudice to the accused. The Judge compared the delay of 25 months to the delay in Martin (17 months) and the delay in Morin (14 and a half months). Those charges related to more serious offending and both resulted in stays. Here there had been no waiver of time periods; the administrative adjournments were due to insufficient time to hear the case as a result of inadequate resourcing of the justice system. The defence also had a right to refuse the offer to have the case part-heard, as this could compromise the defendant's fair trial rights. The leave-related adjournments were outside of the prosecution's control. There were other reasons for the delay , however, it was noted that the primary responsibility lay with the court. It was further noted that in Williams the delay was remedied by a reduction in sentence but it would be unlikely that there would be much sentence to reduce in this case, if the defendant were to be found guilty. Taking all the factors into consideration the Judge determined that there had been an undue delay and the charge against the defendant was dismissed. Judgment Date: 12 February 2020.