Black v The Queen

[2011] NZCA 242

IN THE COURT OF APPEAL OF NEW ZEALAND

CA580/2010
[2011] NZCA 242

BETWEEN  CHRISTOPHER IAN BLACK
Appellant

AND  THE QUEEN
Respondent

Hearing:         9 May 2011

Court:             Chambers, Venning and Courtney JJ

Counsel:         A M Simperingham for Appellant
K A L Bicknell for Respondent

Judgment:      1 June 2011 at 10 am

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The conviction is quashed.

C        A verdict of acquittal is entered.

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REASONS OF THE COURT

(Given by Courtney J)

1. The issue in this appeal is whether a charge of excess breath alcohol under s 56(1) of the Land Transport Act 1998 is to be regarded as an included offence for an aggravated breath alcohol (third or subsequent) charge pursuant to s 56(1) and (4).

2. On 17 April 2009 a police officer stopped a driver, Christopher Black, the appellant, and breathalysed him. He was over the limit. Police then discovered, or so they thought, that he had two previous convictions for drink driving. Accordingly, he was charged under s 56(4), the provision applicable to those facing their third (or more) drink drive charge. Under that section, the defendant faces a maximum penalty of imprisonment for a term not exceeding two years or a fine not exceeding $6,000. The charge proceeded on indictment before a judge alone.

3. Following a voir dire, Judge Perkins, the trial judge, ruled the certificates of the alleged previous convictions inadmissible.[1] This meant that the s 56(4) charge had to be dismissed. Judge Perkins proceeded, however, to determine the charge of excess breath alcohol simpliciter on the basis that it was an included charge pursuant to s 339 of the Crimes Act 1961 which provides:

   (1)Every count shall be deemed divisible; and if the commission of the crime charged, as described in the enactment creating the crime or as charged in the count, includes the commission of any other crime, the person accused may be convicted of any crime so included which is proved, although the whole crime charged is not proved; or he may be convicted of an attempt to commit any crime so included.

   [1]      DC Gisborne, CRI-2010-016-240, 16 August 2010.

4. The Judge found Mr Black guilty on the included charge. He subsequently fined Mr Black.

5. The ground of appeal was that the Judge did not have jurisdiction to deal with the charge in this way because s 339 applies only to included “crimes” and a charge of excess breath alcohol simpliciter, which attracts a maximum penalty of imprisonment for a term not exceeding three months[2], is not a crime as that is defined by s 2 of the Crimes Act.[3] In fairness to the Judge, we point out that counsel at trial did not bring the definition of “crime” and the inapplicability of s 339 to his attention.

   [2]      Section 56(3)(a) of the Land Transport Act 1998.

   [3]See, for example, R v Schwenke CA126/98, 8 March 1989 at 2.

1. Ms Bicknell, for the Crown, responsibly accepted that the appellant’s argument was correct.  The appeal is allowed and the conviction quashed.  It is now too late to bring a summary prosecution under s 56(1).[4]

   [4]Under s 14 of the Summary Proceedings Act 1957 an information for a summary offence must be laid within 6 months from the time when the matter of the information arose.

Solicitors:
Woodward Chrisp, Gisborne for Appellant
Crown Law Office, Wellington for Respondent