Davis v Police - [2014] NZHC 2568

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-000025 [2014] NZHC 2568

REWI JAMES DAVIS Appellant

v

POLICE Respondent

Hearing: 20 October 2014

Counsel:

JAT Ross and R Davis for Appellant
M-J Thomas for Respondent

Judgment:

20 October 2014

JUDGMENT OF WHATA J

[1] Rewi James Davis seeks to appeal, almost 44 years out of time, his sentence of 14 days imprisonment for driving while under the influence of drink, then an offence pursuant to s 58 of the Transport Act 1962. Mr Davis says that this sentence is manifestly excessive and unjust.

[2] I must determine therefore whether it is appropriate to grant leave to pursue the appeal and if so whether the sentence of 14 days imprisonment was manifestly excessive. The resolution of both issues turns on an assessment of the overall
interests of justice.

DAVIS v POLICE [2014] NZHC 2568 [20 October 2014]

Facts

[3] One of the problems with an appeal lodged 44 years out of time is that there is no record of process by which the decision was reached or a record of the reasons for the sentence.

[4] Be that as it may, the circumstances of the offence are reasonably clear. As set out in the submissions helpfully provided by Mr Ross, on 1 August 1970, Mr Davis was in Bluff unloading crayfish and provisioning the crayfish boat. After work he went to the pub with his boss. They drank alcohol and Mr Davis’ boss offered him an old truck to drive home and he took up that offer.

[5] On the way home Mr Davis was stopped by traffic officers. He was required to undergo a breath test which returned a positive result. The results of the blood test returned a high reading, namely 230 micrograms of alcohol per 100 millilitres of blood.

[6] There are other facts referred to in an affidavit evidence of Mr Davis including that he cooperated with the police. But these facts cannot be verified by independent information. Mr Davis has also given evidence that he was surprised at the sentence given that he had no prior convictions. This is to be compared with a newspaper report of Mr Davis’ conviction and sentence which purports to quote the Magistrate as saying:

…. [Mr Davis’] past driving record is a bad one.

Grounds of appeal

[7] The grounds of appeal are listed as follows:

(a) The Learned Stipendiary Magistrate made an error in sentence by imposing a 14-day period of imprisonment.

(b) The sentence of 14 days imprisonment was manifestly excessive for the following reasons:

(i) The term of imprisonment was a substantially more severe sentence than ought to have been imposed in light of the seriousness of the offence, the Appellant’s culpability, and his personal circumstances;

(ii) The Criminal Justice Act 1954 (CJA 1954) provided a strong presumption against imprisonment; and

(iii) The Court at the time dealt with other similar offenders by imposing fines and the Appellant was able to pay a significant fine.

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 Davis v Police

Details

AGLC: Davis v Police [2014] NZHC 2568
Case: [2014] NZHC 2568
Decision Date: 20 October 2014

CaseChat Overview and Summary

Rewi James Davis sought to appeal his 1970 conviction for driving under the influence of alcohol, which resulted in a sentence of 14 days imprisonment. The appeal was lodged 44 years out of time, raising significant issues regarding the availability of records and the overall interests of justice. The central legal issues were whether the delay in bringing the appeal could be excused, whether the Crown had suffered prejudice due to the delay, and whether the appeal had sufficient merit to warrant an extension of time. The court considered these issues in light of the loss of records and the potential for injustice to both parties. Despite the appellant's argument that the sentence was manifestly excessive and unjust, the court found that the significant delay and loss of records precluded a fair assessment of the merits of the appeal. Consequently, the court declined to grant leave for the appeal to be heard out of time, and the appeal was dismissed.

The court emphasised that while the sentence imposed on Mr Davis appeared excessive based on the available information, the inability to properly assess the full context of the sentencing due to the delay and loss of records meant that the court could not make a final determination in his favour. The decision highlighted the importance of timely appeals and the challenges that arise when critical records are lost over an extended period. The court balanced the apparent injustice to Mr Davis against the unfairness to the Crown and the police, who were unable to adequately defend the sentence due to the passage of time and the absence of records. Ultimately, the court concluded that the interests of justice were best served by dismissing the appeal.

Orders