A v Police HC Tauranga CRI 2008-470-1

[2008] NZHC 391

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2008-470-1

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 March 2008 (Heard at Rotorua)

Appearances: Appellant in person

S Bridges and C Harold for Respondent

Judgment:      31 March 2008

ORAL JUDGMENT OF WOODHOUSE J

Parties / Solicitors:

Miss D A  , Appellant,Tauranga

Mr S Bridges / Ms C Harold, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

A V NEW ZEALAND POLICE HC TAU CRI 2008-470-1 31 March 2008

[1]      Miss A   appeals against her conviction in the District Court on a charge of driving with excess breath alcohol at a level of 580 micrograms.  Miss A   appears on her own behalf.

[2]      She was convicted in the District Court at Tauranga on 18 August 2007 following a defended hearing.   I have, of course, been supplied with the notes of evidence as well as the oral judgment.  Evidence was given by two police officers, Inspector Clement and Constable Morrah.  Miss A   cross-examined both witnesses. In  the  course  of  the  hearing  Miss  A    also  made  submissions  to  the  Judge concerning what she described as “identity theft and fraud” relating to her name, and her contention that Inspector Clement was not present when she was stopped and the breath test administered.

[3]      These matters are referred to in the judgment of the District Court Judge.  He came to the clear conclusion on the evidence that the charge was established and Miss A   was convicted.

[4]      On this appeal I have received written submissions from Miss A   and I received further oral submissions from her.  In the course of those oral submissions Miss A   confirmed that there are two  central  points  on  appeal  and  two  other matters, which I will refer to in a moment.

[5]      The first point on appeal is that there has been, as Miss A   describes it, “identity theft and fraud” by the New Zealand Police and other government agencies in respect of her name.  The essence of the point made here is that in a number of the court documents Miss A  ’s surname is spelt entirely in capitals.  I am satisfied that that is not a ground upon which I could overturn the conviction because the way in which a name is presented typographically does not in any way bear  upon  the essential ingredients of the charge that had to be proved.  And there was no challenge by Miss A   in the District Court or in this Court to the proposition that she was the person in fact stopped following which the breath test was administered.

[6]      Miss A   made the further point that in the submissions to me from the Crown her entire name is presented in capitals on the cover sheet.  As I pointed out to Miss A  , this could not have any bearing on the validity of the conviction in the District Court.  It is simply a convention to present the name in capitals – it is not a matter of substance.

[7]      The Crown also inadvertently referred to Miss A  ’s first name in the body of the submissions as “Denis”.  That is plainly a typographical error and counsel for the Crown apologised to Miss A   for that simple mistake.

[8]      The  second  principal  point  on  appeal  is  the  submission  that  Inspector Clement was not present when the breath test was administered.  As I have already mentioned,  that  is  a  matter  that  was  in  issue  before  the  District  Court  Judge. Inspector Clement gave evidence and confirmed his presence.  I am satisfied there was no error by the Judge in his conclusion on the facts, even though Miss A   does not recall Inspector Clement.

[9]      There was a related point Miss A   made in relation to Inspector Clement. That was that she was not aware when she came into the District Court that Inspector Clement was going to give evidence because there was no reference to him in the police and court documents that she had received.  I am satisfied that that did not cause any prejudice to Miss A  .  I raised that point with her and she did not refer me to any prejudice arising from the fact that his name was not referred to.   The particular point Miss A   was making in relation to Inspector Clement is one I have already dealt with – Miss A  ’s contention or belief that Inspector Clement was not there.

[10]     There are two other points that were raised which I should deal with because they have been raised by Miss A  , although they did not go directly to the points on appeal.

[11]     One was Miss A  ’s submission that part way through her case the Judge, in effect, interrupted the case to deal with another person, Mr Tai.  Miss A   referred me to para [13] of the District Court judgment.  At that point of the judgment the

learned District Court Judge was dealing with a submission from Miss A   that she had, amongst other things, “superior title and claim” and that she was “exempt from levy”.

[12]     The point the Judge was making by reference to Mr Tai was that Mr Tai had made a similar, although fuller, submission to the same broad effect.  The transcript of the hearing of evidence-in-chief and cross-examination did not disclose any interruption for another case.  There is in any event no indication of any prejudice bearing on the validity of the conviction.

[13]     The final point I should note, because it was raised by Miss A  , is a claim for restitution.   That – leaving aside any question of jurisdiction – would depend firstly on whether there was a wrongful conviction.  For the reasons I have indicated I am satisfied that the conviction was properly entered.

[14]     For those reasons I dismiss the appeal, but thank you for your submissions.

[15]     I note that the notice of appeal lodged in the standard form includes an appeal against sentence, but no submissions were made to me in that regard.  And the notice of  appeal,  in  terms  of  the  points  there  recorded,  goes  to  the  legitimacy of  the conviction rather than sentence.  In consequence the notional appeal against sentence

is also dismissed.

Peter Woodhouse J