This judgment was delivered by me on 2 October 2015 at 4.30pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:……………………………….

Solicitors/Counsel: Almao Douch, Hamilton M H McIvor, Hamilton

BROWN v NEW ZEALAND POLICE [2015] NZHC 2411 [2 October 2015]

[1] The appellant, Paul Brown, was convicted and sentenced to one year’s intensive supervision, five months’ community detention and disqualified from driving indefinitely on one charge of drove with excess breath alcohol, third or subsequent offence. He appeals against his conviction.

[2] The sole question for determination on appeal is whether a miscarriage of justice has resulted from the Judge, who presided at the trial, participating in a “demonstration” for the purpose of seeing if Mr Brown’s account of the events that led to his arrest was believable.

Background

Summary of Facts

[3] The police summary of facts alleged that on 26 July 2014 at about 6:05 pm, Mr Brown was the driver of a motor vehicle. Police stopped Mr Brown due to the manner of the driving. When police spoke to Mr Brown he exhibited signs of alcohol consumption. A breath test was conducted and he was found to have a breath alcohol reading of 568 micrograms of alcohol per litre of breath. Mr Brown told police that he had only had a couple of beers several hours earlier.

Previous Convictions

[4] Mr Brown is 22 years old. He has a number of minor previous convictions: possessing a knife in a public place, two convictions for possessing cannabis plant, theft under $500, and burglary under $500. He also has three driving offences: two convictions for driving with excess breath alcohol (committed on 17 November 2013 and 04 March 2011 respectively) and one conviction for driving while disqualified. Accordingly, the current charge was the third time Mr Brown had committed an
offence under s 56(1) of the Land Transport Act 1998.1

1 Meaning that, under s 56(4) of the Land Transport Act 1998, the maximum penalty for the offending was two years imprisonment or a $6,000 fine. As the current offending was committed within five years of his two previous drink driving offences, Mr Brown also fell within the mandatory indefinite disqualification provision in s 65(4) of the Act.

District Court Trial

[5] Mr Brown pleaded not guilty to the offending and the matter was tried in a Judge-alone trial in the District Court on 29 January 2015. The Judge delivered an oral decision on 5 February 2015; however, that decision was not recorded. After Mr Brown requested a copy of the decision the Judge “reconstructed the decision” on the basis of his notes for the oral judgment. He was satisfied that “the judgment reflected the essence of the decision and…

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 Brown v Police

Details

AGLC: Brown v Police [2015] NZHC 2411
Case: [2015] NZHC 2411
Decision Date: 2 October 2015

CaseChat Overview and Summary

Paul Phillip Brown was convicted and sentenced to one year's intensive supervision, five months' community detention, and disqualified from driving indefinitely on one charge of drove with excess breath alcohol, third or subsequent offence. He appeals against his conviction. The sole question for determination on appeal is whether a miscarriage of justice has resulted from the Judge, who presided at the trial, participating in a “demonstration” for the purpose of seeing if Mr Brown’s account of the events that led to his arrest was believable. The appellant submits that the Judge should not have invited a practical demonstration where he clearly had doubts about the prosecution case and was seeking to allay those doubts. This effectively reversed the onus of proof. It was not appropriate for the Judge to act as a witness by arranging the practical demonstration. The respondent disputes Mr Brown’s submission that the demonstration resulted in a miscarriage of justice. The purpose of the demonstration was thus to show whether the manoeuvre was in fact possible to a very sceptical Judge. The High Court found that it was open to the Judge to find the charges proved and no miscarriage of justice occurred. The High Court found that the Judge must have had a reasonable doubt about who was driving the vehicle before he participated in the demonstration. That doubt was then extinguished by his wrongful participation in the demonstration. In this way there has been a miscarriage of justice. The appeal is allowed and the conviction is set aside. The matter is remitted back to the District Court for re-hearing.

Orders