Broadley-McLellan v Police

[2012] NZHC 485

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-389 [2012] NZHC 485

BETWEEN  VINCENT BROADLEY-MCLELLAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         19 March 2012

Counsel:         R Treloar for Appellant

H Cassidy for Respondent

Judgment:      21 March 2012

JUDGMENT OF MILLER J

[1]      Mr Broadley-McLellan appeals against conviction for driving with excess breath alcohol and failing to accompany a police officer.  He was convicted in the District Court at Pukekohe on 26 September 2011.

[2]      The appeal is brought on the ground that Mr Broadley-McLellan acted under compulsion, in that two police officers had told him to move the vehicle to a parking place and that was all he was doing when they subsequently apprehended him.  He concedes that although he and his friends were asked to push the vehicle, he in fact drove it using its own engine power, but either way, he submits, he was “driving” for purposes of the Land Transport Legislation.

[3]      It is not in dispute that the police officers told Mr Broadley-McLellan and his colleagues to push the van to a parking place.  The van was in school grounds, with a group of youths around it, and everyone was intoxicated.

[4]      The Judge found that the youths were told to push the vehicle into a car park which was only some 10 metres away.  The officers then left.  Some ten minutes or

VINCENT BROADLEY-MCLELLAN V NEW ZEALAND POLICE HC AK CRI-2011-404-389 [21 March

2012]

so later they returned and saw the vehicle coming towards them on a public road.  It was  about  500  metres  from  the  school.    These  findings  of  fact  rule  out  any possibility of compulsion.

[5]      However,  the  findings  of  fact  are  challenged.    Unfortunately,  the  CD containing the notes of evidence has been lost and they cannot now be retrieved.  I am therefore unable to assess for myself whether the Judge’s findings were available to her on the evidence.  While appropriately circumspect, Ms Treloar indicated that her  own  recollection  was  that  there  were  significant  differences  between  the evidence of the two officers.

[6]      In the circumstances, there was no option at the hearing on 19 March but to allow the appeal and order a rehearing in the District Court.

Miller J

Solicitors:

Public Defence Service, Manukau for Appellant

Crown Solicitor’s Office, Auckland for Respondent