F v Police HC Auckland CRI 2009-404-1512

[2009] NZHC 810

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-001512

F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 July 2009

Appearances: K K Harding for the Appellant

N M H Whittington for the Respondent

Judgment:      14 July 2009

[ORAL] JUDGMENT OF WYLIE J [Appeal against conviction and sentence]

Solicitors:

K K Harding, Barrister, Level 5, 17 Albert Street, Auckland City

Crown Solicitor, P O Box 2213, Auckland

F V NEW ZEALAND POLICE HC AK CRI 2009-404-001512  14 July 2009

[1]      On 30 April 2009 Mr F   pleaded guilty to a charge of driving with excess breath alcohol.  This is an offence pursuant to s 56(1) of the Land Transport Act  1998.    The  District  Court  proceeded  on  the  basis  that  the  conviction  was Mr F  ’s third such conviction and he was fined $500, ordered to pay Court costs of $130 and disqualified from driving for a period of 12 months.

[2]      A notice of appeal was filed by Mr F   on 28 May 2009.  He appealed against both conviction and sentence.  The basis of the appeal is that Mr F   says he pleaded guilty in error to the charge of driving with excess blood alcohol as a third or subsequent conviction.  He was not aware at the time of his plea that he has two prior convictions.  He believed that he only had one prior conviction.  He has asserted in an affidavit that he would not have pleaded guilty if he had known the consequences, as he would have  challenged his second  excessive  blood  alcohol conviction.  He says that he only has one previous conviction.

[3]      It is clear from Mr F  ’s affidavit that he sought legal advice but in the event he was not represented when the matter was called before the Court.  He says that went into the dock when his name was called and pleaded guilty because he “just did what [he] saw other people do as that seemed to be the way to deal with the charge”.

[4]      The information does refer to the fact that Mr F   had previously been convicted at least twice before in relation to the offence.   The fact of the earlier convictions are not however one of the elements of the offence under s 56(1) – R v Livingston [2001] NZLR 167. Rather they are relevant to penalty – s 56(4).

[5]      Where a defendant is charged with an offence for which the penalty is greater if the defendant has previously been convicted of that offence or of some other offence, and, by reason of that greater penalty, the defendant is entitled to elect to be tried by jury, then the information should disclose the existence of the previous conviction or convictions – see s 69(1) and (2) of the Summary Proceedings Act

1957.

[6]      Mr  F    denies  he  has  two  previous  convictions.  I  cannot  today determine whether Mr F   is or is not correct.  I do note that there is nothing on the file to suggest that the Police served notice on Mr  F   specifying the alleged previous convictions as contemplated by s 69A(1) of the Summary Proceedings Act 1957; nor is there a copy of Mr F  ’s criminal record on the file signed and certified by the Registrar as envisaged by s 71(3) of the Summary Proceedings Act.

[7]      Whether Mr F   did or did not have two previous convictions is not the point.  He was sentenced on the basis that he has two previous convictions.  If he has two previous convictions, then he should have been given the right to be elected to be tried by a jury as envisaged by s 69 of the Summary Proceedings Act.  The greater penalty to which he was liable if he does have two previous convictions gave him that right of election.  The right of election should have been offered to him before the charge was gone into by the Court.  There is nothing on the Court file to suggest that the right of election was offered to Mr F  , and as far as I can glean from the file this did not occur.

[8]      This issue was not raised in the written submissions filed by counsel for either  party,  but  I  canvassed  it  with  them  at  the  commencement  of  the  appeal hearing.   In the circumstances, and after a brief adjournment, Mr Whittington appearing for the Police, responsibly accepted that he could not resist the appeal.  He accepted that if Mr F   does have two previous convictions the right of election should have been offered, and that this did not occur.   He also accepted that as matters have transpired, there is a significant risk that there may have been a miscarriage of justice.  This is the effect of the decision of the Court of Appeal in Abraham  v  District  Court  at  Auckland  [2008] 2 NZLR 352. I am grateful to Mr Whittington for his ready acknowledgement of the position.

[9]      The alternative scenario was that postulated by Ms Harding appearing for Mr F  .  If Mr F   has only one previous conviction, then he should not have been sentenced on the basis that he has two previous convictions.

[10]     Either way the position is unsatisfactory and in my judgment there has been a miscarriage of justice.

[11]     In the circumstances, the appeal is allowed.   Mr F  ’s guilty plea is vacated, the conviction and the sentence are set aside, and the matter is remitted back to the District Court at Papakura.

Wylie J