Backhouse v Police - [2015] NZHC 1178

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-011 [2015] NZHC 1178

BETWEEN
HEATH RUSHTON BACKHOUSE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 May 2015

Appearances:

A Robinson for Appellant
C R Walker for Respondent

Judgment:

2 June 2015

JUDGMENT OF LANG J [on appeal against conviction]

Thisjudgment was delivered by me on 1 June 2015 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BACKHOUSE v NEW ZEALAND POLICE [2015] NZHC 1178 [2 June 2015]

[1] Mr Backhouse pleaded guilty in the District Court to a charge of driving with excess breath alcohol. On 13 March 2015, Judge Mackintosh dismissed an application by Mr Backhouse for an order that he be discharged without conviction.1
Mr Backhouse appeals against that decision.

The offending

[2] The charge was laid after the police stopped Mr Backhouse at a roadside checkpoint at 7.45 pm on 31 July 2014. He acknowledged that he had been drinking, and breath testing procedures were carried out. These returned a reading of
442 micrograms of alcohol per litre of breath.

The application for discharge

[3] The grounds underpinning Mr Backhouse’s application for discharge without conviction were contained in two affidavits that he filed in support of the application. The police did not file any affidavits in opposition to his application.

[4] Mr Backhouse deposed that he had gone into town on the afternoon of

31 July 2014 to purchase some groceries. He then drove his vehicle to the beach, where he took his dog for a walk. He said that he then sat in his vehicle and consumed one small bottle of beer and two quart bottles of beer before beginning the journey home. He encountered the checkpoint whilst on that journey. He said that he was surprised at the reading that he returned because he did not consider he would have been over the legal limit.

[5] At the time of the offending, Mr Backhouse was employed as a casual farm labourer. He had taken preliminary steps, however, to become a self-employed commercial possum hunter. He said that the most effective form of possum hunting is to use poison traps baited with potassium cyanide. In order to legally handle, store and use potassium cyanide he was required to obtain a controlled substance licence issued under the Hazardous Substance and New Organisms (Personnel Qualifications) Regulations 2001.

[6] WorkSafe New Zealand (WorkSafe) is responsible for issuing controlled substance licences. It has produced a Technical Guide setting out the criteria that it will apply when determining whether or not to issue a licence. Mr Backhouse was about to lodge his application when the offending occurred. He has now put the application on hold until the outcome of the present appeal is known.

[7] Mr Backhouse believes that a conviction for driving with excess breath alcohol will inevitably mean that his application will be declined. He has reached this conclusion because he understands that WorkSafe’s declared policy will require him to wait three…

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 Backhouse v Police

Details

AGLC: Backhouse v Police [2015] NZHC 1178
Case: [2015] NZHC 1178
Decision Date: 2 June 2015

CaseChat Overview and Summary

Mr Backhouse appealed against the District Court's dismissal of his application for discharge without conviction for an offence of driving with excess breath alcohol. The appeal was dismissed by the High Court. The Court assessed the gravity of Mr Backhouse's offending as low to moderate. The circumstances of the offending involved Mr Backhouse consuming alcohol knowing he would be driving shortly afterwards. This was considered reckless. However, Mr Backhouse had no previous convictions, and his other circumstances were favourable. The Court assessed the likely consequences of a conviction as low to moderate. The conviction would not prevent Mr Backhouse from continuing in his present occupation, but would prevent him from changing occupations to that of a commercial possum hunter if his application for a controlled substance licence was declined. However, the Court did not consider that it was likely that WorkSafe would decline the application solely on the basis of the conviction. The Court concluded that the consequences of the conviction would not be out of all proportion to the gravity of the offending. The appeal was dismissed.

Orders