Daly v Police
[2024] NZHC 932
•26 April 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2024-454-9
[2024] NZHC 932
BETWEEN ISIAH DALY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 April 2024 Appearances:
T E Hesketh for Appellant
A M Barham for Respondent
Judgment:
26 April 2024
JUDGMENT OF CHURCHMAN J
[1]Mr Isiah Daly appeals his conviction of an offence pursuant to s 52A(1)(a)(ii),
(5) and (6) of the Land Transport Act 1998 or failing to stop when followed by red and blue flashing lights. He was convicted and sentenced in the Palmerston North District Court on 7 June 2023 after pleading guilty to this offence, as well as 12 other offences.
[2] Upon preparing for a case management hearing for new charges, his counsel discovered an error where Mr Daly had been convicted on the basis that this was his third offence for failing to stop when followed by flashing lights. Mr Daly had never been previously convicted of this offence. Mr Hesketh, on behalf of Mr Daly filed a notice of appeal on 25 March 2024. He applies for leave to appeal out of time and for Mr Daly’s conviction and sentence to be quashed. Counsel for the Crown concedes the appeal on the basis that this was his first offence for failing to stop, however, seek to substitute the conviction rather than quash it.
DALY v NEW ZEALAND POLICE [2024] NZHC 932 [26 April 2024]
The Offending
[3] According to the Police summary of facts, the offending relevant to this appeal occurred at about 3:45 pm on Friday 2 December 2022. Mr Daly was driving a motor vehicle on Cambridge Street, Levin. Police signalled at him to stop by using flashing red and blue lights and sirens. Mr Daly failed to stop and instead accelerated heavily. This resulted in the charge of failing to stop. The Police statement of facts stated that Mr Daly had been convicted of failing to stop for Police three times.
[4] Following this incident, Mr Daly continued driving dangerously, fleeing Police at speed while driving on the median strip in between heavy traffic. This resulted in the charge of dangerous driving.
[5] The third driving offence recorded in the statement of facts is that on Tuesday 2 January 2023, at about 5:18pm Mr Daly narrowly missed hitting an oncoming car and lost control, swerving onto the opposite side of the road. He mounted the curb and footpath, crashing into a parked vehicle in a carpark. This resulted in a charge of careless driving.
District Court Decision
[6] Mr Daly appeared for sentencing on 13 charges in front of Judge Hastings on 7 June 2023.1 He pleaded guilty to all 13 charges and was subsequently convicted and sentenced on these charges. This included one conviction under s 52A(5) of the Land Transport Act 1998 which is the subject of the current appeal.2 The Judge
1 On 28 November 2022: breach of release conditions by failing to report — maximum penalty one year imprisonment.
On 1 December 2022: breaching release conditions by failing to report —maximum penalty one year imprisonment, theft — maximum penalty of three months’ imprisonment.
On 2 December 2022: failing to stop for red and blue lights — maximum penalty three months’ imprisonment, dangerous driving — maximum penalty three months’ imprisonment.
On 9 December 2022: receiving a stolen vehicle — maximum penalty seven years’ imprisonment. On 2 January 2023: careless driving — maximum penalty $3,000 fine, threatening behavior — maximum penalty three months’ imprisonment, possession of methamphetamine pipes — maximum penalty one year imprisonment, possession of offensive weapon — maximum penalty three years’ imprisonment, possession of an offensive weapon — maximum penalty three years’ imprisonment, unlawful possession of ammunition — maximum penalty $10,000 fine. .
2 Land Transport Act 1998, s 52A(5). Maximum penalty three years’ imprisonment. The Court must order the person to be disqualified from holding or obtaining a driver license for 2 years.
described the charge as “failing to stop for red and blue flashing lights, having failed to do so earlier in your career.”
[7] The relevant charge of failing to stop for red and blue flashing lights was treated as an uplift on the sentence for the other charges Mr Daly was facing. The Judge decided that this charge, in combination with another dangerous driving charge and a careless driving charge warranted an uplift of two months, because of the risk Mr Daly presented to the public. Mr Daly was subsequently sentenced to 16 months’ imprisonment.
[8] Additionally, Mr Daly was disqualified from driving for two years’ and six months’.
The Law
[9] Section 229 of the Criminal Procedure Act 2011 confers a right of appeal against conviction. Section 231(3) enables the court to grant leave to hear an appeal out of time. The considerations relevant to the assessment as to whether to grant leave include the strength of the proposed appeal, the practical utility of the remedy sought, the length of delay and the reason for it, the extent of the impact on others similarly affected and on the administration of justice, and the absence of prejudice to the Crown.3
[10] Section 232(2)(c) of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if the Court is satisfied that a “miscarriage of justice has occurred for any reason”.
[11] A “miscarriage of justice” is defined in s 232(4) as “any error, irregularity, or occurrence in or in relation to or affecting the trial that [either] has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity”. As demonstrated by the legislation, and reiterated by the Supreme Court, not every error or irregularity causes a miscarriage of justice. Importantly, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.4
3 R v Knight (1997) 1 NZLR 332 (CA) at 338.
4 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
[12] A trial includes a proceeding in which the appellant pleaded guilty.5 However, it is only in exceptional circumstances that an appeal against conviction will succeed if the appellant has pleaded guilty. The Court of Appeal in R v Le Page held that exceptional circumstances include where a material mistake or misapprehension on the part of the defendant affected plea entry;6 where there was an absence of a valid charge in law;7 or where the entry of a plea was through a wrong decision on a question of law.8
Submissions
Appellant on leave to appeal out of time
[13] Mr Hesketh, for Mr Daly submits that leave should be granted for the appeal to be heard out of time. He submits that the appeal has good prospects and there is a genuine practical utility in the remedy sought. Additionally, he attributes the delay in filing an appeal to the fact that Mr Daly originally had different counsel when first sentenced. In preparing for a case review hearing on new charges the issues with the charge were discovered. Finally, he submits there is no prejudice to the Crown.
Appellant on conviction and sentence appeal
[14] Mr Hesketh submits that the charge for which Mr Daly was convicted requires at least two previous convictions pursuant to s 114 of the Land Transport Act 1998. At the time of the offending Mr Daly had never previously been convicted of an offence under s 114 as is confirmed by the certified copy of Mr Daly’s criminal history provided to the Court. Mr Hesketh argues that because the District Court Judge convicted Mr Daly for failing to stop for the third time, the Judge gave Mr Daly a “significantly longer” period of disqualification from driving – two years, compared to the six months he would have received if it was his first offence under s 114.
5 Criminal Procedure Act 2011, s 232.
6 R v Le Page, Page [2005] 2 NZLR 845 (CA ) at [17].
7 At [18].
8 At [19]
[15] Mr Hesketh submits that the situation falls into the category of conviction appeal identified in R v Le Page whereby on the admitted facts the appellant could not at law have been convicted of the offence charged. It was an essential ingredient of the offence that the person convicted must have been convicted of an offence against s 114 on at least two previous occasions. Therefore, Mr Hesketh submits that since Mr Daly has never had a conviction under s 114 he could not at law have been convicted of the offence charged.
Respondent submissions
[16] The respondent concedes the appeal, acknowledging that this was Mr Daly’s first conviction for failing to stop for red and blue lights and thus the relevant penalty is not disqualification for two years. The relevant section is s 52A(3) which requires the imposition of six month’s disqualification.
[17] However, the respondent submits that the correct offence can and should be substituted under s 10 of the Inferior Courts Procedure Act 1909. They seek to substitute the offence to ensure that the “record is accurate and any further offending would be charged as a second offence”.
Analysis
Conviction appeal
[18] Clear grounds are made out for granting the application for leave to appeal out of time. While the application was submitted significantly after the deadline for submitting an appeal, as counsel for Mr Daly explained, this was because the error was not discovered by his current counsel until recently. Both parties agree that leave and the appeal should be granted, and there is no prejudice to the Crown.9 Leave is therefore granted.
[19] As has been noted, only in exceptional circumstances will an appeal against conviction and sentence for a charge the appellant has pleaded guilty to will be successful. However, this case falls into such exceptional circumstances, as identified
9 Knight, above n 3 at 338.
in R v Le Page. It is clear, given the defendant’s criminal history which shows no previous conviction under s 114 that he could not have been convicted of an offence which required two previous convictions. Therefore, the appeal is allowed.
[20] The real question to be addressed is whether the appellant’s conviction and sentence should be quashed or substituted and what the effect of quashing the conviction should be on the period of disqualification. The appellant committed an offence when he failed to stop when the police flashed their lights and dangerously sought to escape them, and so must receive a conviction and sentence to punish that offence. No grounds have been advanced to support a finding that a discharge without conviction is warranted, nor has evidence been raised to suggest the appellant had not committed the offence. The only error is the finding that this was the third time he had done so, rather than the first. As raised by Crown counsel, if the conviction was simply quashed, any future offence under s 52A would be recorded as a first offence.
[21] The appellant should have been convicted under s 52A(3) of the Land Transport Act, as he failed to stop in accordance with s 114(2) of the Land Transport Act, and was operating the car dangerously. Section 52A(3) requires the Court to order disqualification from driving for six months.10
[22]It appears there are two options for substituting the conviction.
[23] The first option is submitted by Crown, that the Court has the power to amend a conviction by substituting one offence for another, under s 10 of the Inferior Courts Procedure Act 1909. This provides that:
If on any appeal, whether by way of case stated or otherwise, from a conviction made by an inferior Court for any offence it appears to the Court in which the appeal is heard that the evidence in the inferior Court was insufficient to support a conviction for that offence, but was sufficient to support a conviction for some offence of a similar character within the jurisdiction of the inferior Court, and that the appellant has not been misled or prejudiced in his defence by the course of trial in the inferior Court, the Court in which the appeal is heard may, on such terms as to costs or otherwise as it thinks fit, amend the conviction by substituting the last-mentioned offence for the offence mentioned in the conviction, and shall thereupon adjudicate upon
10 I note that counsel for the Crown submitted that the correct offence is under s 52A(2). However, this does not accurately reflect the fact that Mr Daly was driving dangerously at the time of the offence.
the appeal in the same manner as if the conviction had originally been made in its amended form on a charging document duly charging the appellant with the offence so substituted.
[24] There is little case law on this provision. The authors of Adams on Criminal Law cite the case of Jones v Borrin11 where Fisher J considered that “there may well be merit” in the view that the Act only deals with technical or formal errors, rather than factual mistakes on matters of substance by the parties.12
[25] An alternative provision to amend the conviction is s 234 of the Criminal Procedure Act 2011 which mirrors the s 10 Inferior Court Procedure Act.13 This provision was not referred to by counsel in their submissions but similarly allows the Court to substitute a conviction, as well as also allowing substitution of sentence.
[26] In particular, s 234(4) applies where a person has pleaded guilty at trial to an offence and the Court allows the conviction appeal for that offence.14 Under s 234(4), if the court is satisfied that facts admitted support conviction for a different offence the court may direct that a judgment of conviction for that offence be entered. However, importantly, the convicted person must agree. Mr Daly’s counsel submitted that, provided the Court amended the period of disqualification from two years’ to six months’ that would be the appropriate course.
Sentence appeal
[27] Section 234(5) provides that on making a direction under s 234(4), the court may either impose a sentence for the correct offence;15 or remit the proceeding to the original court for sentencing on the correct offence.16
[28] Neither counsel suggested the matter should be remitted to the District Court. It is appropriate for this Court to dispose of the matter.
11 Jones v Borrin [1989] 3 NZLR 227.
12 Mathew Downs (ed) Adams on Criminal Law – Procedure (online ed, Thomson Reuters) at [IFIntrod.02]
13 At [IFIntrod.02]..
14 Criminal Procedure Act, s 234(2).
15 Criminal Procedure Act, s 234(5)(a).
16 Criminal Procedure Act, s 234(5)(b).
[29]The application for leave to appeal is granted. The appeal is allowed.
[30] The conviction for an offence against s 52A(1)(5) of the Land Transport Act is quashed and a conviction under s 52A(1)(3) is substituted. The period of disqualification is quashed and, on the offence against s 52A(1)(3) a period of six month’s disqualification commencing 7 December 2023 and ending 6 June 2024 is substituted.
Churchman J
Solicitors:
Tim Hesketh, Palmerston North for Appellant Crown Solicitor, Palmerston North for Respondent
3