Edwards v Police - [2012] NZHC 1350

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2011-470-000016 [2012] NZHC 1350

BETWEEN LISA CATHERINE EDWARDS Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing: 14 June 2012

Appearances: P Winkler, R Mulgan and A Simpson for Applicant
H A Wrigley for Respondent

Judgment: 15 June 2012

JUDGMENT OF VENNING J on
(1) Application to recall and
(2) Application for leave to appeal

This judgment was delivered by me on 15 June 2012 at 11 am, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Crown Solicitor, Tauranga
Copy to: P Winkler, Auckland
R Mulgan, Auckland
A Simpson, North Shore, Auckland

EDWARDS V NEW ZEALAND POLICE HC TAU CRI-2011-470-000016 [15 June 2012]

Introduction

[1] On 18 April 2012 this Court allowed the applicant’s appeal against conviction for driving with excess breath alcohol and directed that the case be reheard in the District Court.

[2] The applicant seeks leave to recall that judgment and, in the alternative, seeks leave to appeal to the Court of Appeal.

Background

[3] The applicant was convicted of a charge of driving with excess breath alcohol following a defended hearing in the District Court at Tauranga. The Judge declined her application for a discharge without conviction, convicted her, fined her $900 plus costs and disqualified her from driving for six months. The appellant then appealed to this Court. In the meantime she paid the fine and served the period of disqualification.

[4] When the appeal came before this Court, the respondent conceded the appeal had to be allowed because the record of the notes of evidence, which were crucial to the grounds of appeal, were not available. The appellant wanted to argue that the Judge was wrong in his findings that:

(i) she was not denied the right to speak to a lawyer; and

(ii)she was given the time prescribed by s 70A of the Land Transport Act 1998 (the Act) to consider her options after failing the breath test.

Both points turned on the evidence given in the District Court. The evidence had unfortunately not been recorded by the District Court. In the absence of the record of evidence the appeal had to be allowed.

[5] However, while allowing the appeal this Court directed that the case was to be reheard in the District Court at Tauranga because, for the reasons set out in the judgment, the interests of justice required that there be a rehearing.

The application for recall

[6] Mr Winkler submitted that the second of the three categories recognised in Horowhenua County v Nash (No. 2), justifying a recall applied, because counsel had failed to direct the Court’s attention to a relevant legislative provision, namely s 56(3)(b) of the Act.[1]

[1] Horowhenua County v Nash (No. 2) [1968] NZLR 632.

[7] Mr Winkler submitted that if the Court had had argument addressed to it on that section then it would not have directed a rehearing.

[8] Mr Winkler submitted that as a consequence of s 56(3)(b) if…

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.

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Details

Case: [2012] NZHC 1350
Decision Date: 15 June 2012

CaseChat Overview and Summary

Lisa Catherine Edwards, the applicant, sought to recall a previous judgment and, in the alternative, leave to appeal to the Court of Appeal. The case involved a conviction for driving with excess breath alcohol, which was appealed to the High Court. The High Court had previously allowed the appeal and directed a rehearing in the District Court. The key legal issues for the Court to decide were whether the judgment could be recalled and whether leave to appeal should be granted. The Court considered the grounds for recall as outlined in Horowhenua County v Nash (No. 2) and whether there was an administrative error that warranted a rehearing. The Court also considered the interpretation of sections 56(3)(b) and 85(1) of the Land Transport Act 1998 in relation to the imposition of disqualification periods. The Court concluded that the circumstances of the offence warranted a rehearing and that section 85(1) of the Act allowed the District Court to backdate the period of disqualification. Therefore, the application for recall was dismissed. Additionally, the Court determined that the proposed question of law was not of general and public importance or sufficiently arguable to warrant submission to the Court of Appeal, and the application for leave to appeal was also dismissed.

Orders