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Clarabal v Police

Clarabal v Police

Case [2020] NZHC 1518 1 July 2020

Appeal

Miscarriage of Justice

Deportation liability

Criminal Law

Immigration & Refugee Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-148

[2020] NZHC 1518

BETWEEN
VICTOR CLARABAL

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 June 2020

Appearances:

M J Mellin and R Sastry for Appellant D Muratbegovic for Respondent

Judgment:

1 July 2020

JUDGMENT OF LANG J

[on application for leave to bring second appeal]

This judgment was delivered by me on 1 July 2020 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Kayes Fletcher Walker, Manukau

CLARABAL v NEW ZEALAND POLICE [2020] NZHC 1518 [1 July 2020]

[1] Mr Clarabal pleaded guilty in the District Court to a charge of driving with excess breath alcohol.1 In an oral decision delivered on 16 August 2019, the Community Magistrate declined an application by Mr Clarabal to be discharged without conviction under s 106 of the Sentencing Act 2002. Mr Clarabal appealed against the Community Magistrate’s decision. In a decision issued on 31 March 2020,
Judge R J Earwaker dismissed the appeal.2

[2] Mr Clarabal seeks leave to bring a second appeal to this Court against the Judge’s decision. On 20 May 2020 Whata J directed that the application for leave to appeal should be heard at the same time as the substantive appeal. The application for leave ultimately occupied the whole of the allocated hearing time. I therefore propose to give my decision on that issue now.

The offending

[3] The summary of facts prepared for the hearing in the District Court records that at 11.33 pm on Saturday 8 June 2019 Mr Clarabal was driving a motor vehicle on Great South Road, Manukau. His vehicle was observed swerving within its lane and travelling at a fluctuating speed.

[4] Mr Clarabal was stopped by police officers who were concerned about the way he was driving. He exhibited signs of recent alcohol intake in that he smelt of, and admitted to having consumed, alcohol. Breath testing procedures were carried out and an evidential breath test recorded a reading of 787 micrograms of alcohol per litre of breath. When interviewed, Mr Clarabal admitted he had consumed two bottles of beer at a friend’s house before driving.

Principles relevant to the application for leave to bring a second appeal

[5] The application for leave to bring a second appeal is governed by ss 237(2) and 253(3) of the Criminal Procedure Act 2011. In short, this Court must not grant leave unless it is satisfied either that:

1 Land Transport Act 1998, s 56(1).
2 Clarabal v Police [2020] NZDC 4115.

(a)The appeal involves a matter of general or public importance; or

(b)A miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[6] Mr Clarabal contends both limbs of the test are satisfied. The Crown contends neither is engaged. I propose to consider each of the tests in turn.

Does the appeal raise an issue of general or public importance?

[7] The test for a discharge without conviction is straightforward and well…

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 Clarabal v Police

Details

AGLC: Clarabal v Police [2020] NZHC 1518
Case: [2020] NZHC 1518
Decision Date: 1 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Victor Clarabal, an applicant, filed an application for leave to bring a second appeal against the decision of Judge R J Earwaker, who dismissed Mr Clarabal's appeal against the decision of the Community Magistrate declining his application for discharge without conviction under s 106 of the Sentencing Act 2002. Mr Clarabal had pleaded guilty in the District Court to a charge of driving with excess breath alcohol and was subject to a deportation liability notice under s 157 of the Immigration Act 2009. The Immigration and Protection Tribunal subsequently dismissed Mr Clarabal's appeal based on humanitarian grounds under s 207 of the Act. Mr Clarabal contended that the appeal involved a matter of general or public importance and that a miscarriage of justice may have occurred unless the appeal was heard. The Crown argued that neither of the tests was satisfied. The court observed that the issue of granting a discharge without conviction where deportation may be one of the consequences had been analysed in recent cases, and there was no need for further analysis. Furthermore, the court concluded that the existence of a conviction may sometimes be relevant to decisions made in other avenues available to avoid deportation, but the breadth of the discretion in each case meant that courts of first instance could not realistically include them within the likely consequences to be taken into account when considering an application for discharge. The court declined the application for leave to advance a second appeal.

Orders