A v New Zealand Police

[2006] NZHC 193

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-385

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 March 2006

Appearances: Appellant in Person

Ms A R Longdill for Respondent

Judgment:      9 March 2006

[ORAL] JUDGMENT OF FRATER J [Re Leave to Appeal]

To:            Mr I M A   113A Eskdale Road Birkenhead Auckland (Appellant)

Solicitors:    Meredith Connell P O Box 2213 Auckland for the Respondent

A V POLICE HC AK CRI-2005-404-385  9 March 2006

[1]      On  28  February,  I  dismissed  Mr  A  ’s  appeal  against  his conviction and sentence on a charge of driving with excess breath alcohol.  He now seeks leave, pursuant to s 144 of the Summary Proceedings Act 1957, to appeal to the Court of Appeal on a question of law.  It is appropriate to set out the relevant portion of that section.  Section 144(1) states that:

144      Appeal to Court of Appeal

(1)       Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

...

[2]      The four questions which Mr A   poses for the consideration of the Court of Appeal are as follows:

1.Did  the  District  Court  Judge  acted  proper  when  refusing  the appellant’s request for an adjournment to enable consultation with a lawyer pursuant to a Bill of Rights duty?

2.Does His Honour’s decision not calling for an affidavit from the duty solicitor/lawyer who advised the appellant that there was no Bill of Rights forms in the Police file when the matter was first brought to Court on 4 7 2005 proper and fair?

3.The  Bill  of  Rights  forms  the  Judge  accepted  that  the  officer delivered to the appellant’s address about a month or so later and which   His   Honour   agreed   to   have   fulfilled   Bill   of   Rights requirement,  the  Bill  of  Right  requirement  in  s  24A  shall  be informed  promptly and  in  detail  of  the  nature  and  cause  of  the charge.  Did a month’s time satisfy the phrase “inform properly”?

4.Breach alcohol testing to get drunk drivers off the road not revenue collection.  There was no evidence appellant was drunk.   The fine and conviction defeated Parliament’s attention when legislated on breath alcohol testing.

[3]      The requirements which must be met if leave is to be granted are threefold. They are set out in the decision of the Court of Appeal in R v Slater [1997] 1 NZLR

211, namely:

i)        there must be a question of law;

ii)the question must be one which, by reason of its general and public  importance  or  for  any  other  reason  ought  to  be submitted to the Court of Appeal;  and

iii)the  Court  must  be  of  the  opinion  that  it  ought  to  be  so submitted;

or, to put it another way, the question to be asked is “was there a question of law which, by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision?”

[4]      In Slater, the Court noted that the Court has no residual discretion to grant leave if no question of law arises on the appeal.

[5]      For the Crown, Ms Longdill submitted that none of the questions identified by the appellant constitutes a question of law.

[6]      Mr A   disputes that, and, in any event, submits that if he is not able to go to the Court of Appeal, he is being denied justice.

[7]      The first issue concerns the refusal of an adjournment.

[8]      In   my   decision,   I   relied   upon   the   appellant’s   confirmation   to   the District Court Judge that he was quite happy to proceed that day, notwithstanding his earlier request for an adjournment so he could consult a lawyer.

[9]      Today, Mr A   reiterated the point that he had made at the earlier hearing before me, namely, that, at the time of the hearing in the District Court, he was suffering the consequences of a fire at his home a month or two earlier. Consequently, he says, he was not able to focus properly.  He now suggests that he only agreed to proceed because he did not want to argue with the Judge, and that, although, on the previous occasion his case was due to be heard, he had waited at Court all day for that to happen, he had intended to ask for an adjournment before the hearing commenced.

[10]     It is not appropriate for me to comment, one way or another, on either of those suggestions.

[11]     There are two factors which satisfy me that this is not a question of law, and certainly not one which warrants consideration by the Court of Appeal:

i)The first and primary reason was the appellant’s willingness to proceed before Judge Deobhakta.

ii)Secondly, this is essentially a factual issue.  It does not raise any matters of general public importance.

[12]     The same answer can be given in respect of the second question, concerning the Judge’s failure to seek an affidavit from the duty solicitor.

[13]     Again, this is a factual dispute.  The officer was adamant that copies of the notices were on the Court file.   Mr A  ’s understanding was that they were not.   But even if they were not, and I do not make any ruling one way or another in respect of that, it seems to me that that issue is a red herring.  The issue for the Court was whether or not Mr A   was given proper advice of his rights at the time, in other words, at the time that he was apprehended and underwent the various breath testing procedures.  The Judge was satisfied that he was, and I am not persuaded that he was wrong in this.

[14]     The third question addresses the same point as the second.  As Ms Longdill said in her written submissions, the appellant seems to misunderstand the decision of the Judge on this issue.  The finding of the Judge was that he preferred the evidence of Cons Pritchard to the effect that he advised the appellant of his rights under the New Zealand Bill of Rights Act 1990 on the night in question, using the standard forms.  The Judge did not decide that the appellant was first advised of his rights a month later when the forms were delivered to the appellant’s address.

[15]     Fourthly, and finally, there is the question relating to the suggested purpose of breath alcohol testing, and Parliament’s intention in relation to that.

[16]     Mr A   is insistent that he had only had four drinks on the day and that he was not drunk.   The breath alcohol reading gives the lie to that assertion. However, the test is not whether a person is drunk;  the test is whether a person is driving with excess breath alcohol.   Whether there is excess alcohol in a person’s breath is determined by carrying out the breath testing procedure, rather than how he or she appears.  In Mr A  ’s case, that showed a breath alcohol level of more than twice the legal limit.

[17]     In the circumstances, there is no basis for putting the fourth question to the Court of Appeal either.  As I recall, there is a separate section of the Land Transport Act 1998 relating to driving while under the influence of alcohol or drugs, but that is a separate charge, and Mr A   was not charged with that offence:   see s 12.  Mr A   was charged with an offence against s 11 which prohibits people driving a motor vehicle on a road while the proportion of alcohol in their breath exceeds 400 micrograms of alcohol per litre of breath.

[18]     In all the circumstances, I decline leave to appeal to the Court of Appeal.

[19]     Mr A  ’s period of disqualification will take effect from midnight tonight and will continue for six months.  The suspension of the order for payment of the fine and Court costs ceases to have effect, and those orders can also be enforced now.

M A Frater J