Daly v Police - [2024] NZHC 932

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…

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 Daly v Police

Details

AGLC: Daly v Police [2024] NZHC 932
Case: [2024] NZHC 932
Decision Date: 26 April 2024

CaseChat Overview and Summary

In Daly v Police, Isiah Daly appeals his conviction and sentence for failing to stop for police when followed by red and blue flashing lights, arguing that the conviction was based on a material error that led to an incorrect sentence. Daly was sentenced in the Palmerston North District Court on 7 June 2023, but an error was discovered that Daly had never been previously convicted of this offence, making this his first offence rather than his third. Daly’s counsel argues that this error led to an incorrect sentence of two years’ disqualification from driving instead of the correct six months’ disqualification. The Court was required to decide whether Daly's appeal should be heard out of time, and if the conviction and sentence should be quashed or substituted.

The Court granted leave for Daly’s appeal to be heard out of time, noting that the delay was due to the discovery of the error by his current counsel. The Court found that this was an exceptional case where an appeal against conviction and sentence for a pleaded guilty charge would be successful, as Daly could not have legally been convicted of the offence as charged. The Court substituted the conviction from s 52A(1)(5) to s 52A(1)(3) of the Land Transport Act, reducing the period of disqualification from two years to six months. The Court found that substituting the conviction was appropriate under s 10 of the Inferior Courts Procedure Act 1909 or s 234 of the Criminal Procedure Act 2011, as the error did not prejudice Daly’s defence. The Court quashed the original conviction and sentence and substituted a conviction under s 52A(1)(3) with a six months’ disqualification period.

The Court ordered that 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.

Orders