Doran v Police
[2025] NZHC 2252
•11 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000626 CRI-2024-404-000627 CRI-2024-404-000628
CRI-2024-404-000629 [2025] NZHC 2252
BETWEEN JOEL KRISTIAN DORAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 June 2025 Appearances:
J P Hickey for Appellant
C R Purdon for Respondent
Judgment:
11 August 2025
JUDGMENT OF ANDREW J
This judgment was delivered by me on 11 August 2025 at 3 pm
Registrar/Deputy Registrar Date:
DORAN v NEW ZEALAND POLICE [2025] NZHC 2252 [11 August 2025]
Introduction
[1] This is an application by Joel Doran for leave to appeal1 five convictions (and the sentences imposed), dating from between 1994 and 2006, when the applicant was aged between 21 and 35 years old. Mr Doran’s notice of appeal was filed on 5 November 2024; 18 to 30 years out of time.
[2] In 2024, Mr Doran applied for a rehearing in the District Court in relation to all five charges. The basis for that application was that he wished to pursue a discharge without conviction due to concerns that his criminal history was impacting on his employment. That application was refused by Judge von Keisenberg.2 Mr Doran also appeals that rehearing decision.
[3]Mr Doran says the purpose of the appeals is:
to request the Court to consider a discharge without conviction given the positive changes effected in the Applicant’s life which could not have been foreseen when he was younger and also consequences that he now faces which were unforeseen at the time of those convictions.
[4] Mr Doran currently works for Wētā Workshop and says the convictions prevent him from travelling and working overseas. He says it is profoundly unjust that he is still being penalised for relatively minor historic convictions and in circumstances where he has served the sentences imposed, never re-offended and made significant and successful efforts to rehabilitate himself.
[5] The Police oppose the application to extend time for appealing and the appeal (rehearing) and submit:
(a)Mr Doran has no right of appeal against Judge von Keisenberg’s decision to refuse his application for rehearing under s 75 of the Summary Proceedings Act 1957;
(b)there is no utility to the application for leave to appeal out of time because the Court has no jurisdiction under the relevant s 19 of the
1 Summary Proceedings Act 1957, s 123.
2 Doran v Police [2024] NZDC 21720.
Criminal Justice Act 1985 to discharge Mr Doran without conviction for the two excess breath alcohol offences; and
(c)the appeal against conviction and sentence is substantially out of time and the explanation for the delay is unsatisfactory. The appeal appears to lack merit and it is not in the interests of justice for an extension of time to be granted.
[6] Before proceeding, I note that Mr Doran seeks to adduce fresh evidence “for the substantive appeal” in the form of a series of affidavits. The Court may receive further evidence on appeal if it is in the interests of justice to do so.3 The evidence is generally required to be credible and fresh.4 As the evidence contained in the affidavits may be useful in assessing the potential merits of an appeal, and there being no objection by the Police, I allow the admission of the affidavits of Ms Christina de Wit, Dr Justin Barry-Walsh, Mr Robert Gillies, and a further affidavit of Mr Doran.
Mr Doran’s convictions and application for rehearing
[7] Judge von Keisenberg’s decision provides a useful summary of Mr Doran’s convictions:
[3] Between 1994 and 2006 Mr Doran was convicted of the following offences:
(a)On 27 January 1994, Mr Doran, then 21 years old, pleaded guilty to one charge of being unlawfully in a building under s 29(1)(a) of the Summary Offences Act 1981. He was found without reasonable excuse in an enclosed yard, namely Point Erin Pools. The offence carried a maximum penalty of 3 months imprisonment or a fine of
$1,000. He was convicted and ordered to come up for sentence if called upon.
(b)On 6 April 1998, Mr Doran, then 25 years old, pleaded guilty to one charge of driving with excess breath alcohol level over 400 micrograms per litre of breath under s 56(1) of the Land Transport Act 1998 (LTA). His level was 854 micrograms per litre of breath. The offence carried a maximum penalty of 3 months imprisonment or a fine of $4,500. He was convicted and received a fine of $500 with a six-month disqualification from driving.
3 Criminal Procedure Act 2011, s 335.
4 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]. Also see Mark v R [2019] NZCA 121
at [16].
(c)On 4 December 2000, Mr Doran, then 27 years of age, pleaded guilty to a second offence of driving with excess breath alcohol level under s 56(1) of the LTA with a reading of 1,179 micrograms per litre of breath. He also pleaded guilty to a using a vehicle carelessly under s 31 of the LTA. He was convicted and fined $1,000. Due to the level of breath alcohol, he was ordered to attend an Assessment Centre and received a mandatory indefinite disqualification.
(d)On 28 August 2006, Mr Doran, then aged 35 years, pleaded guilty to one offence of possession of pipe or utensil for cannabis under s 13(1)(a) under the Misuse of Drugs Act 1975, which carried a maximum penalty of 1 year imprisonment, a fine of $500 or both. He was fined $300 with court costs of $130 and an order for destruction made.
[8] Mr Doran applied for rehearing of these charges under s 75 of the Summary Proceedings Act and/or s 177 of the Criminal Procedure Act 2011,5 on the grounds that the convictions had had a serious impact on his employment. He specifically submitted that:
(a)when he was convicted for driving charges in 1998 and 2000, a discharge without conviction was not available. He said that, had he been convicted after 2002, he would have been eligible for discharge; and
(b)the Criminal Records (Clean Slate) Act 2004 is not available for drink driving convictions, making him ineligible for the Clean Slate Scheme in respect of his drink driving convictions.
[9]Judge von Keisenberg declined his application on four grounds:
(a)there was no miscarriage of justice in respect of any of the five previous convictions;
(b)the substantial delay in bringing an application may have been surmountable if grounds of appeal had been successfully advanced;
(c)there is public interest in the finality of decisions; and
5 Note: Section 75 of the Summary Proceedings Act was repealed in 2013.
(d)there was limited merit in the application.
Jurisdiction to appeal rehearing decision
[10] There is no right of appeal against the refusal to grant a rehearing under s 75 of the Summary Proceedings Act.6 Mr Doran relies on Shackleton v Police, and the conflicting decision in Green Transport Ltd v Police to suggest that there is some ambiguity as to the issue of jurisdiction.7 However, there is extensive and well-settled law confirming that there is no right of appeal against the refusal of an application for rehearing.
[11] In light of the clear line of authorities providing that there is no right of appeal against the refusal to grant a rehearing, Mr Doran’s appeal against Judge von Keisenberg’s rehearing decision is dismissed.
[12] I now turn to address the second matter before me, namely the application to appeal the historic convictions out of time.
Application for extension of time
Legal framework
[13] As Mr Doran’s convictions are historic, the legislation that was in force at the time of his offending is applicable. Accordingly, I approach the application for extension of time in light of the relevant provisions of the Summary Proceedings Act, rather than the Criminal Procedure Act.
[14] Under s 115 of the Summary Proceedings Act, a person convicted by the District Court has a right of appeal to the High Court. Section 116 required the notice of appeal to be filed within 28 days. As noted, Mr Doran is 18 to 30 years out of time.
6 Raue v Police [2013] NZHC 3062. Also see Anderson v R [2016] 2 NZLR 321, [2015] NZCA 518; Royal v New Zealand Police HC Wellington CRI-2010-485-91, 21 October 2010; Tuohy v Police [1959] NZLR 865 (HC); Police v Norman [1975] 1 NZLR 391 (CA); and Vanniselroy v New Zealand Police HC Dunedin CRI-2007-412-61, 6 December 2007.
7 Shackleton v Police [2020] NZHC 384; and Green Transport Ltd v New Zealand Police [2023] NZHC 990. Note: in Green, the Court held that the conclusion in Shackleton was wrongly decided and should not be followed.
[15] Section 123 allows the High Court to extend time for filing an appeal. The principles relevant to extensions of time are well established. The touchstone will be the interests of justice in the particular case.8 This involves the balancing of a range of factors, including:9
… the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.
[16] A further, significant consideration will be the reason for the delay in bringing the appeal.10 As the Court of Appeal in R v Slavich summarised:
[13] It is for the appellant to provide sufficient information for the Court to determine whether it is in the interests of justice for leave to be granted… Where the appellant fails to provide a satisfactory explanation for the delay, “the only ground … on which the delay could be overlooked is if the proposed appeal is overwhelming on the merits.”
[14] In the simplest terms, extension of time applications will routinely reduce to two heads. Firstly, why was the appeal filed late? Secondly, what, if any merit, does the prospective appeal appear to have?
[17] In her rehearing decision, Judge von Keisenberg accepted the submission of counsel for Mr Doran that the principles applying to appeals out of time were applicable to the rehearing application before her. I will analyse and apply the same key considerations (i.e. length and reasons for delay, merits of the proposed appeal, prejudice and overall interests of justice) in addressing the application before me for leave to appeal out of time.11 Many of the findings and conclusions of the Judge on these same factors are of direct relevance and are applicable to the application before me.
[18] I first address the principal Crown submission that there is no utility to the application for leave to appeal out of time because the Court would have no jurisdiction under s 19 of the Criminal Justice Act to discharge Mr Doran without conviction for the two excess breath alcohol offences.
8 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [96]. Also see R v Slavich [2008] NZCA 116 at [14].
9 R v Lee at [99].
10 R v Slavich, above n 8, at [14].
11 Doran v Police, above n 2, at [28].
[19] Mr Doran has made clear that he seeks to have all convictions set aside because any one of them is a problem for him as they may prevent him from travelling and working overseas.12
Jurisdiction
[20] As Judge von Keisenberg correctly held, the Court of Appeal decision Police v Wise13 is directly on point. That decision is, of course, binding on both this Court and the District Court. Although that decision was decided under s 30(3) of the Transport Act 1962, in my view it applies equally to the equivalent statute provisions under the Land Transport Act 1998 (LTA). The decision also directly addresses and applies s 19 of the Criminal Justice Act, which was the relevant provision (i.e. discharge without conviction) in force at the time of Mr Doran’s convictions.
[21] When Wise was decided, s 30(3) of the Transport Act provided that, in respect of certain offences, the Court was required to order a minimum period of six months’ disqualification from driving unless for special reasons relating to the offence it thought fit to order otherwise. The Court of Appeal held that before a person may be discharged without conviction for an offence to which s 30(3) applied, the Court had first to consider whether there were special reasons relating to the offence which would warrant the Court not imposing disqualification. If the Court for special reasons relating to the offence thought fit not to order a period of disqualification, then there was no minimum penalty and the Court could proceed to consider whether in its wider discretion the offender should be discharged without conviction. On the other hand, however, if there were no such reasons and the Court was bound to impose disqualification, then a minimum penalty was expressly provided for and the Court could not discharge without conviction.14
[22] Mr Doran was convicted on the first excess breath alcohol charge in 1998 and the second in 2000 under s 56 of the LTA. Section 56(3)(b) provides that if a person is convicted of a first or subsequent offence against s 56(1), the Court must order the person be disqualified from holding or obtaining a driver’s licence for six months or
12 See memorandum of counsel for the appellant, dated 9 July 2025.
13 Police v Wise [1987] 1 NZLR 290 (CA).
14 At 294.
more. Triggering s 56(3)(b), Mr Doran was subsequently convicted for the second excess breath alcohol offence within five years and the proportion of alcohol in his breath exceeded 1,000 micrograms of alcohol per litre of breath (with a reading of 1,179). This also engaged s 65 of the LTA, under which a mandatory indefinite disqualification is imposed.
[23] Under s 81 of the LTA, if special reasons relating to the offence were advanced, a court could make an order imposing no order for disqualification. On that basis, as Judge von Keisenberg held, the Court would not need to impose a minimum penalty, and an applicant could be eligible to apply for a s 19 discharge without conviction.
[24] If, therefore, Mr Doran could successfully establish special reasons relating to the offence to justify no order for disqualification, then the Court would have jurisdiction to consider a s 19 discharge without conviction. However, as Judge von Keisenberg held, Mr Doran had not advanced any special reasons (and likewise none before me), nor was there any evidence of special reasons in relation to the drink-driving offences at that time.
[25] In the circumstances here, it is difficult to see how the Court might have jurisdiction to grant a s 19 discharge. On the evidence, Mr Doran would have real difficulty in meeting the threshold of special reasons relating to the offence.
[26] I now turn to address the merits of the application for an extension of time for appealing. As noted, the same criteria were addressed by Judge von Keisenberg in her rehearing decision.
The length of and reasons for delay
[27] Mr Doran has explained that the delay in bringing his appeal was due to him being unaware of the consequences of his convictions until 2023, when he accepted a fixed term role with Wētā Workshop that required him to travel overseas. Prior to this role, he said he did not foresee ever being in a line of work that would require international travel.
[28] The Police submit that this explanation fails to adequately justify the significant delay. While Mr Doran may not have turned his mind to the consequences of his convictions prior to 2023, the impact of convictions on a person’s employment and travel opportunities would have been well known at the time those convictions were entered.
[29] The Police submit that Mr Doran’s explanation is similar to that given in McNeil v Police, in which leave to appeal was filed 29 years out of time. The appellant claimed he had only recently appreciated the impact of his conviction for possession of cannabis, entered when he was 17, when he was required to travel overseas for work. While Jagose J granted leave to appeal, he was critical of the delay, noting that there was not a “compelling or understandable reason” for it.15
[30] The Police further note that Mr Doran filed his notice of appeal 10 months after he is said to have realised the impact of his convictions on his employment and 80 days after receiving the decision of Judge von Keisenberg. No reason has been provided for that delay.
[31] I have considerable sympathy for Mr Doran’s position. It is understandable that he did not fully appreciate the consequences of his convictions and, in particular, their impact on his ability to travel overseas, until the current work opportunity was presented to him. However, as Judge von Keisenberg held, although the specific series of consequences were not foreseeable by Mr Doran, the impact of convictions upon a person’s ability to travel, or obtain employment, were well known at the time of the convictions.
[32] In conclusion on this issue, I find that while there is some reasonable explanation for the lateness of the application, it is not compelling.
15 McNeil v Police [2018] NZHC 1685.
The merits of the proposed appeal.
[33] The critical issue to address is the likelihood of Mr Doran successfully obtaining a discharge without conviction if the application for leave to extend time were granted.
[34] On this issue I adopt and endorse the following findings of Judge von Keisenberg:
[53] In respect of the 1994 charge of unlawfully entering a building, namely Point Erin Baths, I accept on the face of it the nature of the offence combined with Mr Doran’s youth would likely have rendered the gravity of the offending as low. Applying the three-step approach, I am satisfied that had a s 106 been sought or the equivalent in 1994 it had a reasonable chance of being granted.
[54] Leaving aside the significant jurisdictional hurdles facing Mr Doran, I now turn to the two driving with excess alcohol offences in 1998 and 2000, and examine the offending in the context of the modern s 106 principles. Noting that, as I have set out, a s 19 approach would have applied.
[55] Drink driving is considered to be a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society.16 Boldt J stated in Trotter that “the dangers posed by intoxicated drivers have not diminished over the years. The relatively high threshold in s 107 consequences that are out of all proportion to the gravity of the offending, have not changed nor has the need to denounce and deter a form of offending that remains a serious danger to the community.”17
[56] Mr Doran submitted that he has engaged in rehabilitative efforts over the years which were mandated as part of a programme he was required to complete to regain his driver’s licence following the indefinite disqualification. He says he has now addressed his alcohol problem and is sober and has attended counselling for alcohol and mental health issues. He submitted that a lack of convictions for any further offending since 2006 is evidence of his rehabilitation.
[57] A reading of 854 being over twice the limit is regarded as high. At 25 years of age the offending is at the outer limits of youth but in the absence of historical sentencing notes it is difficult to assess what mitigating factors could have been taken into account to reduce the gravity of the offending from serious to moderately serious or low. Given the high reading and in the absence of any explanation or other mitigating factors the prospect of a s 106 discharge without conviction being granted even today are relatively low in my view.
[58] In respect of the second breath alcohol conviction in 2000 with a reading of 1,179 micrograms of alcohol per litre of breath is almost three times
16 Basynat v Police [2018] NZCA 486 at [19].
17 Trotter v Police [2024] NZHC 2376 at [45].
the limit. The offending would have been regarded as serious offending aggravated by the fact that Mr Doran was also convicted of careless driving at the same time. It is unlikely that the court would have been persuaded even under the s 106 regime to reduce the gravity of the offending, given it was his second offence, to anything other than serious gravity.
[59] I acknowledge that the 2006 conviction for possession of a pipe or utensil for cannabis is not serious in nature. However, in view of the four earlier convictions, any application for a discharge without conviction would have been an uphill battle at that time. Mr Doran has provided some updated evidence that in more recent years he has been diagnosed with ADHD and treated for this. This factor may have been relevant at the time of the offending in assessing the gravity. However, if this charge were the only matter the Court had been dealing with I would have had little hesitation in finding that the gravity of this offending was low. I note that since this conviction and sentencing occurred after 2002 so s 106 applied.
[35] I accept that it is necessary for me to have regard to the fresh evidence filed in support of the appeal before me. I acknowledge the significant steps that Mr Doran has taken to make changes to his lifestyle and to put these offences behind him. I understand his sense of injustice that after all these years later when he has taken significant steps to try and rehabilitate himself, the consequence of the convictions should still have a prejudicial impact. However, and particularly in relation to the second blood alcohol conviction with a reading of 1,179 micrograms was almost three times the limit, it is very difficult to see how Mr Doran might properly qualify for a discharge without conviction. As Judge von Keisenberg noted, that offending occurred within two years of an earlier offence with an exceptionally high reading (854 micrograms — i.e. over twice the limit) and clearly presents a very significant hurdle.
[36] As noted above, Mr Doran accepts that in order to overcome the prejudice he faces, it is necessary to set aside all of the convictions, including both the excess breath alcohol ones.
[37] I find that the merits of the proposed appeal are weak. There is no real likelihood that the necessary discharges without conviction would be obtained.
Prejudice to the respondent
[38] I accept that the respondent is prejudiced by the delay. The Police files appear to have been destroyed (in accordance with standard document management
protocols) and it is not clear whether the original Court’s sentencing notes are available.
[39] On its own, this factor is not decisive but does tend to tell against the grant of the application.
Interests of justice
[40] The wider interests of society and the finality of decisions weighs heavily against Mr Doran’s interests in having his convictions reviewed. Appeal periods are set for a purpose:18
To ensure finality in decision-making and … the orderly administration of justice.
[41]As Jagose J observed in McNeil v Police:19
It would place serious strain on the court system if people convicted of offences nearly 30 years ago were able to relitigate their convictions when faced with specific obstacles arising from that conviction.
[42] As the respondent correctly acknowledges, the courts have previously entertained appeals filed substantially out of time where the appellant points to some procedural inadequacy,20 issues of general public importance,21 and/or miscarriage of justice.22 However, Mr Doran’s appeal does not fall into any of those categories. Unlike in C v Police, there is no evidence indicated that Mr Doran received inadequate legal advice when he pleaded guilty to the offences. Likewise, he does not assert that a miscarriage of justice has occurred.
Conclusion
[43] In weighing all these factors, I conclude that the application to extend time for filing a notice of appeal under s 123 of the Summary Proceedings Act should be declined. It is not in the interests of justice for leave to be granted. In particular, the
18 Brown v New Zealand Police [2018] NZHC 1083.
19 McNeil v Police, above n 15.
20 C v Police [2021] NZHC 3560.
21 Ellis v R [2022] NZSC 114, [2022] NZLR 2539.
22 C v Police, above n 20; Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286.
merits of the proposed appeal are weak; it is difficult to see how the appellant could obtain a discharge without conviction, which is what he seeks. That hurdle appears to be insurmountable even if the Court were free to consider the issue under s 106 of the Sentencing Act 2002 (rather than s 19 of the Criminal Justice Act).
[44]Jagose J held in McNeil v Police:23
It is important to recognise that the merits must be relatively strong, such that there is a real likelihood that an appeal would succeed if time was extended.
The threshold of “relatively strong” is clearly not made out here.
[45] I acknowledge this is a regrettable outcome for Mr Doran and his case does tend to expose the limitations of the Criminal Records (Clean Slate) Act.
Result
[46] The application for leave to extend time to appeal under s 123 of the Summary Proceedings Act 1957 is declined.
[47] The appeal against the decision of Judge von Keisenberg declining a rehearing is dismissed.
Andrew J
23 McNeil v Police, above n 15, at [10], endorsed by Gwyn J in C v New Zealand Police, above n 20 at [45].
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