Daniels v Police - [2015] NZHC 358

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-036 [2015] NZHC 358

BETWEEN IAN MALCOLM DANIELS Appellant

AND

POLICE Respondent

Hearing: 19 February 2015

Counsel:

J D Lucas for Appellant
N A Pointer for Respondent

Judgment:

4 March 2015

JUDGMENT OF THE HON JUSTICE KÓS

[1] A bad day for Mr Daniels, and one about to get worse. After drowning his sorrows at a local bar he went out to his truck and started the engine. At that point a police constable emerged from the shadows of the night, breath-tested Mr Daniels and arrested him.

[2] Judge O’Driscoll convicted Mr Daniels of attempting to drive a motor vehicle

with excess breath alcohol.1 He was sentenced to 12 months supervision, fined

$1,500, and was also disqualified from holding a driver’s licence for 12 months and one day.

[3] Mr Daniels now appeals against conviction and sentence.

Background

[4] It was unchallenged in evidence that at about 1.30 am on Saturday 9 March

2013, Mr Daniels was sitting in the driver’s seat of his truck, with engine on,

1 Land Transport Act 1998, s 56; Police v Daniels DC Christchurch CRI-2013-009-002738,
9 April 2014.

DANIELS v POLICE [2015] NZHC 358 [4 March 2015]

headlights on, and an indicator blinking.2 At that point Constable Christianson, as I

have said, breath-tested and arrested him.

[5] What was challenged was what Mr Daniels said to the constable. The constable’s evidence was that Mr Daniels had said that he was “just having a sleep”. And that Mr Daniels could not explain why he had started the engine to do that. The constable’s notebook entries were produced in evidence. They include a contemporaneous note to that effect. It was apparently taken between 1.34 am and
1.45 am. Mr Daniels’ previous counsel did not challenge the constable’s recollection directly. But he did put to him that Mr Daniels’ evidence would be that he had started the engine in order to recharge the battery in his cellphone so that he could make a phone call. The constable said Mr Daniels had not given such an explanation at the time.

[6] Mr Daniels gave evidence before the Judge. He explained that he had had a very bad day with family issues. As a result he had been drinking for some hours at the bar. He said he had only started the engine to charge the cellphone. He went on to say:

I turned the key on, the truck was running, and I dialled my friend’s number. I couldn’t get a hold of one of them so I rang my other mate Dave’s number and I got through to him. But that’s when the police officer approached the vehicle so I just basically told him and hung up.

In cross-examination he gave a slightly different account:

Q. You say that when the constable approached, you were actually talking to your friend Dave on the phone?

A. I had his number dialled, I’ve got it on my phone bill which I…

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 Daniels v Police

Details

AGLC: Daniels v Police [2015] NZHC 358
Case: [2015] NZHC 358
Decision Date: 4 March 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Ian Malcolm Daniels appealed against his conviction and sentence for attempting to drive a motor vehicle with excess breath alcohol, imposed by Judge O’Driscoll. Daniels was found sitting in the driver’s seat of his truck with the engine on and headlights on, and subsequently arrested by a police constable after a breath test. The primary legal issue was whether the new evidence of a phone call made by Daniels at the time of the incident should be admitted, and if so, whether it would affect the outcome of the conviction and sentence. The court held that the new evidence was not fresh, credible, or cogent, and thus not admissible. The conviction and sentence appeals were dismissed, with the court finding that the original decision was appropriate and within the court's discretion. The final order was that the conviction and sentence appeals were dismissed.

Orders