NEW ZEALAND GAZETTE, No. 140

Justice

Crimes Act 1961

Reference to the High Court of the Question of the Conviction of Donald Mitchell Hedges for Wounding with Reckless Disregard

ANAND SATYANAND, Governor-General

ORDER IN COUNCIL

At Wellington this 21st day of September 2009

Present:

HIS EXCELLENCY THE GOVERNOR-GENERAL IN COUNCIL

His Excellency the Governor-General, acting under section 406(a) of the Crimes Act 1961 and on the advice and with the consent of the Executive Council, refers to the High Court the question of the conviction of Donald Mitchell Hedges, entered in the District Court at Whangarei on 21 October 1986, for wounding with reckless disregard for the safety of others contrary to section 188(2) of the Crimes Act 1961.

The background to, and the reason for, the reference appear in the Schedule.

Schedule

1. Interpretation—In this Schedule:

   “the applicant” means Donald Mitchell Hedges.

   Background

2. Trial and appeal—(1) On 8 January 1986, an information was laid against the applicant charging him with wounding with reckless disregard for the safety of others, which is an offence against section 188(2) of the Crimes Act 1961.

   (2) The applicant’s trial for that offence took place in the District Court at Whangarei on 21 October 1986 and the applicant was convicted of that offence.

   (3) On 5 November 1986, the applicant was sentenced in the same court to two years’ imprisonment.

   (4) The applicant appealed against the conviction and sentence to the High Court.

   (5) On 27 November 1986, the High Court dismissed the applicant’s appeal against conviction, but allowed the appeal against sentence and substituted a sentence of 18 months’ imprisonment.

3. Application for exercise of Royal prerogative of mercy—The applicant applied to the Governor-General, in an application dated 1 April 2008, for the exercise of the mercy of the Crown in respect of his conviction.

4. Apparent lack of jurisdiction to enter conviction—

   (1) It appears that the District Court did not have jurisdiction to try, convict, or sentence the applicant for an offence against section 188(2) of the Crimes Act 1961.

   (2) An offence against section 188(2) of the Crimes Act 1961 is, and was in 1986, an indictable offence. This is because:

   (a) section 188(2) of the Crimes Act 1961 provides that “Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person”:

   (b) section 2(1) of the Crimes Act 1961 defines “is liable” to mean “is liable on conviction on indictment”.

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(3) Section 6 of the Summary Proceedings Act 1957 gives the District Court summary jurisdiction in respect of certain indictable offences listed in Schedule 1 of that Act. However, section 188(2) of the Crimes Act 1961 is not, and in 1986 was not, included in Schedule 1.

(4) Under section 28A of the District Courts Act 1947, District Courts have jury trial jurisdiction in respect of certain indictable offences. However, in 1986, District Courts did not have jurisdiction, under section 28A of the District Courts Act 1947, over an offence against section 188(2) of the Crimes Act 1961.

(5) In 1986, a charge for an offence against section 188(2) of the Crimes Act 1961 had to be laid indictably and could be heard only in the High Court.

(6) It appears that, when the District Court tried, convicted, and sentenced the applicant for the offence against section 188(2) of the Crimes Act 1961, the Court purported to act in its summary jurisdiction. This is borne out by the following documents:

  (a) The information laid against the applicant on 8 January 1986 in accordance with section 15 and in form 1 of Schedule 2 of the Summary Proceedings Act 1957, alleging that the applicant committed an offence against section 188(2) of the Crimes Act 1961:

  (b) the summons in respect of the alleged offence issued on 8 January 1986 in accordance with section 19 of the Summary Proceedings Act 1957 and in form 3 of Schedule 1 of the Summary Proceedings Regulations 1958:

  (c) the judgment of Judge H. R. H. Paul in the District Court at Whangarei dated 21 October 1986 that sets out the reasons for convicting the applicant of the offence against section 188(2) of the Crimes Act 1961.

Reason

5. Reason—The reason for the reference is that the matters set out above:

   (a) indicate that the District Court did not appear to have jurisdiction to try, convict, or sentence the applicant for the offence against section 188(2) of the Crimes Act 1961; and

   (b) could lead the High Court to conclude that a miscarriage of justice has occurred.

REBECCA KITTERIDGE, Clerk of the Executive Council.
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District Courts Act 1947

Acting Community Magistrate Appointed

Pursuant to section 11H of the District Courts Act 1947, His Excellency the Governor-General of New Zealand has been pleased to appoint

Patricia Sylvia Ferguson, Community Magistrate

to be an Acting Community Magistrate, to carry out such functions and powers as are conferred on Community Magistrates, in such Courts at such times as the Chief District Court Judge may from time to time direct, under section 11C of the District Courts Act 1947, for a term of 24 months on and from 2 October 2009.

Dated at Wellington this 14th day of September 2009.

HON SIMON POWER, Minister of Justice.
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