B v Police HC Auckland CRI 2008-404-186 - [2008] NZHC 1042

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-0186

BETWEEN B
Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 July 2008

Appearances: Zahir Mohamed for Appellant
Anna Bradley for Respondent

Judgment: 4 July 2008

JUDGMENT OF HARRISON J

SOLICITORS
Zahir Mohamed (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

B V POLICE HC AK CRI 2008-404-0186 4 July 2008

[1] Mr B was convicted in the District Court at Manukau on 19 June

2008 on one charge of driving with excess blood alcohol. He has appealed that conviction. He is represented by Mr Zahir Mohamed who has considerable experience and expertise in this field.

[2] Following conviction Mr B was fined $750 and disqualified from driving for seven months from 19 June 2008. On his behalf Mr Mohamed sought an order in the District Court deferring the operation of the disqualification order pending determination of Mr B ’s appeal against conviction. The application was denied on the papers by Judge Harvey on 20 June 2008. No reasons were given. Mr B appeals that decision today.

[3] Ms Anna Bradley for the Crown responsibly accepts that Mr B ’s appeal against the District Court’s refusal to stay the sentence must be allowed. The weight of authority is overwhelming to that effect: s 107 Land Transport Act 1998; Heaslip v MOT HC AK AP193/91 13 September 1991; Gregory-Hunt v Police HC AK CRI 2004-404-36 16 March 2004. The reason is obvious. Mr B will be denied the fruits if his appeal is successful. His appeal right will be rendered nugatory. This is not a case where the appeal is brought in bad faith or raises spurious points of law. The deferment should have been granted.

[4] Accordingly Mr B ’s appeal against the District Court’s refusal on

20 June 2008 to defer his sentence of disqualification and a fine is allowed and

Mr B is permitted to drive until determination of his appeal in this Court.

Rhys Harrison J

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading B v Police HC Auckland CRI 2008-404-186

Details

AGLC: B v Police HC Auckland CRI 2008-404-186 [2008] NZHC 1042
Case: [2008] NZHC 1042
Decision Date: 4 July 2008

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Mr. B appealed against his conviction and the subsequent sentence imposed by the District Court at Manukau. Mr. B had been found guilty of driving with excess blood alcohol and was fined $750 and disqualified from driving for seven months. He sought to defer the operation of the disqualification order pending the determination of his appeal against conviction, but this application was denied by Judge Harvey on 20 June 2008.

The legal issues before the court were whether the District Court had the authority to deny the deferral of the disqualification order and whether such a denial would render Mr. B's appeal rights nugatory. The court had to consider the statutory provisions of the Land Transport Act 1998 and relevant case law to determine the appropriate course of action. Specifically, the court examined section 107 of the Act, as well as precedents such as Heaslip v MOT and Gregory-Hunt v Police.

The court found that the weight of authority supported the notion that Mr. B's appeal against the District Court's refusal to stay the sentence should be allowed. The court emphasized that Mr. B's appeal was not brought in bad faith nor did it raise spurious points of law. Consequently, the court concluded that the deferment should have been granted, as denying it would effectively nullify Mr. B's appeal rights. Therefore, Mr. B's appeal against the District Court's refusal to defer his sentence of disqualification and a fine was allowed, permitting Mr. B to drive until determination of his appeal in the High Court.

The final orders of the court were that Mr. B's appeal against the District Court's refusal on 20 June 2008 to defer his sentence of disqualification and a fine was allowed. This meant that Mr. B was permitted to drive until the determination of his appeal in the High Court. The court's decision was based on the importance of preserving the integrity of the appeal process and ensuring that Mr. B's rights were not unjustly compromised.

Orders