Bignell v Police
[2023] NZHC 128
•8 February 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2022-419-000047
[2023] NZHC 128
IN THE MATTER OF: an appeal against conviction and sentence BETWEEN
ROHAN LEITH BIGNELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 February 2023 Appearances:
A J Haskett for the Appellant B B Harris for the Respondent
Judgment:
8 February 2023
JUDGMENT OF TAHANA J
(Appeal against conviction and sentence)
This judgment was delivered by me on 8 February 2023 at 2.00pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Legal Defence Service Ltd/Road Legal Ltd, Auckland Crown Solicitor (Hamilton Legal), Hamilton
BIGNELL v NEW ZEALAND POLICE (Appeal against conviction and sentence) [2023] NZHC 128 [8 February 2023]
Introduction
[1] The appellant, Rohan Bignell, was convicted and sentenced on one charge of driving with excess breath alcohol (third or subsequent)1 at the Hamilton District Court.
[2] Judge B A Crowley found Mr Bignell guilty on 13 May 2022.2 In a separate sentencing decision given on 29 June 2022, Judge Crowley imposed a fine of $500 and a disqualification period of one year and one day from the date of the hearing.3 The imposition of the disqualification period is suspended until this appeal is determined.
[3] Mr Bignell appeals both his conviction and sentence on the ground that the Judge erred in law and fact. Mr Bignell had driven a motor vehicle in a public carpark. The issue on appeal is whether the car park was a “road” for the purposes of the charge.
Background
[4] On Saturday 1 June 2019, just after 3.00 am, a security guard at Centre Place carpark in Hamilton observed Mr Bignell returning to collect his car. The guard assessed Mr Bignell as being inebriated, took his ticket from him and alerted police.
[5] Constable Barlow arrived at the car park at approximately 3.25 am and observed Mr Bignell reversing his vehicle backward from the barrier arm back into the car park. Constable Barlow spoke to Mr Bignell and observed signs of recent alcohol consumption. She then carried out breath test and blood sample procedures. Upon analysis, the sample was found to contain 107 milligrams of alcohol per 100 millilitres of blood.
[6]When questioned, Mr Bignell said he was heading to Mahoe Street.
1 Land Transport Act 1998, s 56(2) and (4); maximum penalty of two years’ imprisonment or $6,000 fine, and the court must order the person be disqualified from holding or obtaining a driver licence for more than one year.
2 Police v Bignell [2022] NZDC 8354 at [27].
3 Police v Bignell [2022] NZDC 14183 at [4].
District Court decision
[7]Judge Crowley issued a reserved judgment on 13 May 2022.4
[8] At trial, Mr Bignell’s defence counsel disputed the charge on two bases. First, that his right to legal advice was breached, and second, that he did not drive on “a road” for the purposes of the Land Transport Act 1998 (the Act).
[9] As the issue on appeal is the second matter, I repeat Judge Crowley’s assessment in full:5
[23] Counsel handed up a number of cases [where] the definition of road has been considered by higher courts. I have found the decision of the Court of Appeal in McBreen v Ministry of Transport to be of most assistance. Cooke J (as he then was) acknowledged that the definition involves places which would not normally be considered by the public as roads:
Of course the definition of “road” is artificial to the extent that it includes such a place [as a railway platform, or an escalator], but wide definition may well be artificial in some aspects. That is often part of their purpose. With all respect to the various views that have been expressed judicially to the contrary, and while understanding the natural reluctance to treat as a road something which is not one in ordinary speech, I can see no justification for reading down the ordinary and natural meaning of “any place to which the public have access”.
[24] The place in McBreen was a public park. At the relevant entrances to the park there was a sign prohibiting motor vehicles from entering the park. In my view, the Court of Appeal’s emphasis was on the protection of the public who have access to the park, rather than a strict definition of the word “road”.
[25] It seems to me from reading that case and the decision of Police v Smith that it is the nature of the place which is the key consideration. The essential question is whether the place is open to the general public whether by way of right or not, or whether it is private property. In Smith, the place was [a] private driveway and held not to be a road and this decision was followed by Heath J in Taylor v Police.
[26] This case involves a public carpark. The public are invited to park their cars while they shop in the attached shopping mall. Providing any person is prepared to pay the parking fee, everyone is invited to use the carpark. It is very clearly a place which is open to the public and safely falls within the definition of a “road” in the Land Transport Act. The issue in this case is whether the carpark is still [a] place open to the public when the defendant went there at 3 am. In my view it is. The essential nature of the space as a place which is open to the public is not affected to the point where behaviour
4 Police v Bignell [2022] NZDC 8354. The hearing took place on 6 May 2022.
5 Footnotes omitted. See: McBreen v Ministry of Transport [1985] 2 NZLR 496 (CA); Police v Smith [1976] 2 NZLR 412 (SC); and Taylor v Police High Court Auckland A57/02, 3 July 2022.
which is the subject of the Land Transport Act and which might endanger the public should be allowed. At any time, the carpark is open, any person can enter the carpark with a view to use the facilities. After the carpark is closed for the night, the same applies, but a person must be prepared to pay the fee for the call out of a security guard to allow entry into the carpark. Mr Bignell in his evidence attempted to portray a situation as one where every person will not be permitted to enter the carpark after hours unless they produced a valid parking ticket to the security guard. I do not accept his evidence on that point and did not hear from the security guard or see the sign fixed to the exterior of the gate. In my view the carpark is inherently a public space and is therefore a road for the purposes of the Land Transport Act. This ground of defence also fails.
[10] Being satisfied that the carpark was a road at the relevant time and for the purposes of the Act, the Judge found Mr Bignell guilty of driving with excess blood alcohol.
Sentence
[11]Judge Crowley issued brief sentencing notes on 29 June 2022.6
[12] The Judge explained that Mr Bignell was not eligible for a guilty plea discount, having defended the charge. He acknowledged that Mr Bignell’s two prior driving convictions were historic, and he had recently engaged with Harmony Trust to address his drinking habits.
[13] The fine of $500 was set on the basis that the blood alcohol level was “moderate” and offending history was “not excessive.”
[14] Judge Crowley explained that he was bound by legislation to disqualify Mr Bignell from driving for “more than” one year, given his previous convictions. The disqualification period of one year and one day was therefore the minimum the Judge could impose in law.
[15] The Judge also ordered Mr Bignell to pay the associated blood analysis fee and medical expenses, totalling $191.99.
6 Police v Bignell [2022] NZDC 14183.
Legal principles on appeal
[16] The Criminal Procedure Act 2011 provides a right of appeal against conviction.7 The appellate court must allow an appeal against a judge-alone trial if the Court is satisfied that:8
(a)the Judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)a miscarriage of justice has occurred for any reason.
[17] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:9
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[18] The Criminal Procedure Act also provides a right of appeal against sentence. Section 244 provides in part:
(1)A person convicted of an offence may appeal under this subpart to the first appeal court against the sentence imposed for that offence, unless the sentence is one fixed by law.
[19] The appellate court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the appellate court must dismiss the appeal.10
Relevant law
[20] The Land Transport Act sets out offences and penalties for driving while intoxicated. Section 56 relevantly provides:
56 Contravention of specified breath or blood-alcohol limit
7 Criminal Appeals Act 2011, s 229(1).
8 Section 232(2)(b) and (c).
9 Section 232(4).
10 Section 250.
...
(2)A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
...
(4)If a person is convicted of a third or subsequent offence against subsection (1) or subsection (2), or any of sections 57A(1), 58(1), 60(1), or 61(1) or (2) (whether or not that offence is of the same kind as the person’s first or second offence against any of those provisions),—
(a)the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
[21]The intended scope of the term ‘road’ is set out at s 2(1) of the Act:
road includes—
(a)a street; and
(b)a motorway; and
(c)a beach; and
(d)a place to which the public have access, whether as of right or not; and
(e)all bridges, culverts, ferries, and fords forming part of a road or street or motorway, or a place referred to in paragraph (d); and
(f)all sites at which vehicles may be weighed for the purposes of this Act or any other enactment.
Was the carpark a “road”?
[22] The issue on appeal is narrow and turns on whether the carpark was a “road” by reason of being a place to which the public have access.
[23] Mr Haskett for Mr Bignell submits that the prosecution failed to prove beyond reasonable doubt that there was public access to the carpark on the night in question because access was limited by a gate and security guards. Mr Haskett submits that
access was only to licensees, being those who held a parking ticket and therefore the “public” requirement was not met.
[24] Before determining this issue, I identify the principles enunciated by the courts when considering the definition of “road” and in particular, the meaning of “place,” “public” and “access.”
Approach to meaning of “place”
[25] In Elvey v Police,11 Wild CJ held that a public carpark next to an aero club was a road for the purposes of the Transport Act 1962. Wild CJ considered that “place” should be given its plain and ordinary meaning and additional restrictions on its meaning should not be imposed.12
[26] This approach was also applied in Auckland City Council v Peacock,13 where the court held that a municipal carpark building was deemed a “road” notwithstanding the structure and appearance not resembling a road or street as commonly understood.
[27] Peacock involved a case stated so the court was not required to determine whether the facts supported the carpark being a place to which the public have access. In that case, the magistrate had stated as a fact that the public would have access to the carpark. The question was answered on that basis with Chilwell J observing that:14
… Having myself examined the notes of evidence in the lower court I am far from satisfied that there was sufficient evidence to support that statement of fact. However, Mr Thorp is bound by the case as stated. …
[28] The above decision, while helpful when considering the meaning of “place”, does not assist in determining the question of “access.” It highlights that the issue is a factual one.
[29] Based on the above decisions, I am satisfied that the inherent nature of a carpark does not exclude it from being a “place” for the purposes of the Act.
11 Elvey v Police [1969] NZLR 21 (SC).
12 At 23.
13 Auckland City Council v Peacock [1978] 1 NZLR 771 (SC).
14 At 776.
Approach to meaning of “public”
[30] Police v Smith15 provides helpful guidance on the meaning of “public.” In that case, Mr Smith successfully appealed a conviction under s 60 of the Transport Act 1962 for using a motor vehicle on a road carelessly. The incident took place on a driveway on private property leading from a road to a building where a social function was being held. Admission to the function was by ticket only. The appellant had not purchased a ticket but had been told he would be able to purchase one on arrival and did so. The incident occurred when he was leaving.
[31] In Smith, the Court considered that the definition requires that the general public has access.16 In that case, there was no evidence that the general public was entitled to go on to the driveway:17
It is clear that only those places to which the public – that is, the general public
– have access, as of right or not, constitute “roads”. The evidence in this case is clear and unequivocal that it is private land – there is no evidence that any member of the public is entitled to go on it or does go on it, whether or not by any right, except for business or social purposes. It is not, in other words, a place to which the public in general resort as a matter of course, though not necessarily of right. It seems to me that this clearly brings it within the test laid down in the case of Harrison v Hill 1932 SC (J) 13, 16, where that very distinction was clearly made. It is not enough that premises or a place may be physically open for the public to wander in on. It must be that they are so open and so well known to be open that in fact the public do, either continually, or from time to time, without asking anybody’s permission, enter upon them. If they do that, it is a place to which the public have access whether as of right or not, and it is a road.
[32] The above passage indicates that access may be continual or from time to time provided the place is one of which the general public are aware and commonly go.
[33] In the Court of Appeal decision in McBreen v Ministry of Transport,18 Cooke J noted that the “public” cannot be a narrow class of invitee. Mr Haskett submits that ticket holders for a carpark on private land are licensees and not members of the public so the “public” requirement is not met. I do not consider this submission is consistent with the plain and ordinary meaning of the word “public” or “access.” If all members
15 Police v Smith [1976] 2 NZLR 412 (SC).
16 At 413.
17 At 413.
18 McBreen v Ministry of Transport [1985] 2 NZLR 495 (CA) at 498.
of the public are entitled to access by obtaining a ticket they have access. I also do not consider those same persons change from being members of the public to being licensees after hours because the conditions to gain entry change. That would require an interpretation of “public” that is inconsistent with Smith. Provided the place is one of which the general public are aware and commonly go whether continually or from time to time, the place is one to which the public have access.
[34] The question I have to consider is whether in interpreting “public,” the Court is to limit the meaning to a particular point in time so that if after hours, access is restricted to existing ticket holders only, this changes the nature of the persons entitled to enter. On this issue, Judge Crowley concluded the general public were entitled to access:19
[26] This case involves a public carpark. The public are invited to park their cars while they shop in the attached shopping mall. Providing any person is prepared to pay the parking fee, everyone is invited to use the carpark. It is very clearly a place which is open to the public and safely falls within the definition of a “road” in the Land Transport Act. The issue in this case is whether the carpark is still [a] place open to the public when the defendant went there at 3 am. In my view it is. The essential nature of the space as a place which is open to the public is not affected to the point where behaviour which is the subject of the Land Transport Act and which might endanger the public should be allowed. At any time, the carpark is open, any person can enter the carpark with a view to use the facilities. After the carpark is closed for the night, the same applies, but a person must be prepared to pay the fee for the call out of a security guard to allow entry into the carpark. Mr Bignell in his evidence attempted to portray a situation as one where every person will not be permitted to enter the carpark after hours unless they produced a valid parking ticket to the security guard. I do not accept his evidence on this point and did not hear from the security guard or see the sign fixed to the exterior of the gate. In my view the carpark is inherently a public space and is therefore a road for the purposes of the Land Transport Act. This ground of defence fails.
(emphasis added)
[35] The onus is on the appellant to satisfy the appeal court that it should differ from the decision under appeal. It is only if I consider that the decision is wrong that I am justified in interfering with it.20 The appellate court is obliged to form its own assessment of the findings of fact and the weight to be given to evidence.21
19 Police v Bignell [2022] NZDC 8354.
20 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
21 At [19].
[36] The appellant says that access was so tightly controlled that it cannot be regarded as access to the “public.” The absence of evidence from the security guards or the sign on the gate, Mr Haskett argues, indicates that the prosecution failed to discharge the burden of proof. I accept that it was for the prosecution to prove beyond reasonable doubt that the carpark was a place to which the public have access.
[37] There was however, evidence about the sign on the gate. Mr Bignell gave evidence that he had taken a photo of the sign and the notes of evidence record that he read from the photo:
For any access after hours, $50 cash callout is payable. For after-hours access, phone 078318106.
[38] Mr Bignell obtained access in this way. At [26], the Judge rejected Mr Bignell’s suggestion that not everyone would be entitled to access the carpark unless they produced a valid parking ticket. Mr Bignell’s evidence was that he was required to show his parking ticket to the security guards. The Judge had the advantage of assessing the credibility of Mr Bignell’s evidence regarding the ticket and in those circumstances, it is appropriate to be hesitant about interfering with that finding.22
[39] The information Mr Bignell gave about the sign did not limit the class of invitees or require that only those with parking tickets are entitled to access the carpark. If, as Mr Bignell says, a ticket was required, persons holding those tickets were members of the public and those persons continued to have access to the carpark after hours. It would result in an absurd outcome if temporary changes to access rules changed a place from being a “road” at one time of the day but not the other. This is especially so if at all times members of the public may be present at the place. The fact numbers may be reduced because of night access rules, does not change the place from being a place to which the public have access.
[40] The definition of “public” should not be unreasonably constrained. The approach the appellant advances requires a too narrow interpretation of “public” and “access.” The Court of Appeal in McBreen emphasised the purpose of the Act is the
22 At [5].
protection of the public so that “public” and “access” should be given their plain and ordinary meanings with an eye to the purpose of the Act.
[41] Mr Haskett, for Mr Bignell, submits that the security guards had noticed that Mr Bignell was intoxicated and had deliberately prevented him from being able to leave the carpark. Mr Haskett submits that on this basis, security would also have prevented other members from entering the carpark for their safety. I do not consider this evidence establishes a reasonable doubt that the carpark could not be accessed by the public at that time. It is evidence of the restrictions on Mr Bignell, but it does not raise a reasonable doubt as to restrictions imposed on members of the public in circumstances where the sign says they are entitled to access.
[42] Mr Haskett also submits that the fact Constable Barlow was able to enter the carpark does not prove beyond reasonable doubt that the carpark was publicly accessible given Constable Barlow was a police officer. I do not consider that this evidence establishes a reasonable doubt that the public could not access the carpark in circumstances where there is evidence that access can be gained by calling the security guards.
[43] I therefore accept that the evidence establishes that the carpark was a place to which the public have access. Mr Bignell gained access because he was a member of the public. It would be a too narrow interpretation of “public” to hold that Mr Bignell was a licensee at night but a member of the public during the day simply because access was limited to ticket holders at night. I do not consider that the security guards restricting Mr Bignell’s movements nor the entry of Constable Barlow raises a reasonable doubt that the public did not have access.
[44] In these circumstances, I am not satisfied that the Judge erred. On my own assessment of the evidence, I agree with the Judge’s finding that the carpark was a place to which the public have access.
[45] Given my finding on the conviction, I consider that the sentence was appropriate.
Result
[46]The appeal is dismissed.
Tahana J
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