Gounder v Police
[2016] NZHC 170
•15 February 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000417 [2016] NZHC 170
BETWEEN CHRIS GOUNDER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 February 2016 Appearances:
Z Mohamed for Appellant
D Stevens and H Benson-Pope for RespondentJudgment:
15 February 2016
ORAL JUDGMENT OF HINTON J
Solicitors:
Z K Mohamed, Howick, Auckland
Kayes Fletcher Walker Limited, Auckland
GOUNDER v NEW ZEALAND POLICE [2016] NZHC 170 [15 February 2016]
Introduction
[1] The appellant, Mr Gounder, was found guilty on one charge of driving with excess alcohol, third or subsequent, before Judge Johns at the District Court at Manukau.1 He was sentenced to five months’ home detention with conditions and was indefinitely disqualified from driving pursuant to s 65 of the Land Transport Act
1998.
[2] He now appeals against his conviction. (This matter was said to be an appeal against conviction and sentence, however, there is nothing to suggest in the notice of appeal or in the submissions for the appellant, that the appellant intended to appeal his sentence. I therefore treat the appeal solely as an appeal against conviction.)
Background
[3] In the early hours of 24 April 2014, Mr Gounder was travelling on a road in Manukau at a speed of 85 kilometres per hour in a 50 kilometre zone. He was stopped by Mr Breen, a Constable and Acting Sergeant on patrol. When approached by Mr Breen, the appellant appeared to show signs of recent alcohol intake, including slurred speech and glazed eyes. He was asked whether he had been drinking and his response was that he had three beers and a can of premix rum and cola.
[4] When he was asked for his personal details for processing, Mr Gounder initially gave incorrect information.
[5] Mr Gounder was asked to undertake a breath screening test at 12.26 am, the result of which was positive. He was advised of his rights contained in the New Zealand Bill of Rights Act 1990.
[6] At 12.32 am, Mr Gounder accompanied Mr Breen to the Manukau Police
Station. Mr Gounder was re-advised of the right to consult or instruct a lawyer, which he did.
1 Police v Gounder [2015] NZDC 25837.
[7] At 1.04 am, Mr Gounder took an evidential breath test and, at 1.20 am, a result of 681 micrograms of alcohol per litre of breath was obtained. Mr Gounder was again re-advised of his rights.
[8] Mr Gounder elected to have a blood test taken within the 10 minute period at
1.29 am. The analyst’s certificate recorded the blood as 165 milligrams of alcohol per litre of breath, plus or minus eight milligrams of alcohol per 100 millilitres of blood. Therefore, at best, Mr Gounder would have had a blood alcohol level of 157 milligrams of alcohol per 100 millilitres of blood.
District Court decision
[9] The Judge was satisfied to the requisite standard that the elements of the charge against Mr Gounder were met.
[10] As to the disputed facts, the Judge was of the view that the evidence of
Mr Breen was credible and reliable, noting:2
I accept his evidence [referring to Mr Breen] that when he pulled you over for speeding that you exhibited signs of recent alcohol intake. I accept his evidence over yours that you gave false information which delayed the procedure. I accept his evidence over yours that when you got to the police station you went to the toilet and were in there for 10 to 15 minutes. His evidence clearly shows that the evidential breath test was administered appropriately, you were given your Bill of Rights at each occasion appropriately, and elected to speak to a lawyer on each occasion. That the delays that occurred were easily explained by your conduct and that the taking of the blood sample was in accordance with the appropriate regulations and that the evidence satisfies me beyond reasonable doubt that you were driving your car with that blood alcohol level on 24 April.
Approach to appeals
[11] Section 229 of the Criminal Procedure Act 2011 (the Act) provides a convicted person with a right of appeal against conviction. An appeal court must allow a first appeal against conviction if satisfied that in the case of a Judge-alone
trial the Judge erred in his or her assessment of the evidence to such an extent that a
2 At [13].
miscarriage of justice has occurred.3 Section 232(4) of the Act defines “miscarriage of justice” as meaning:
… any error, irregularity, or occurrence in, or in relation to, or affecting the
trial that –
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial, or a trial that was a nullity.
[12] Not every error will result in a miscarriage of justice. In Matenga v R, the Supreme Court stated “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.4
[13] A “real risk” exists when “there is a reasonable possibility that a not guilty
(or more favourable) verdict might have been delivered if nothing had gone wrong.5
[14] Not every departure from good practice will amount to an unfair trial. The errors or irregularities must be “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the conviction.6
[15] An appeal against conviction proceeds by way of rehearing. I am therefore required to consider carefully all matters which were before the Judge, but ultimately I must reach my own decision on the merits. The weight I give to the evidence is a matter for my judgment.
[16] Generally an appellate court will defer to findings of credibility made by the court below, where that court has the advantage of seeing and hearing the witnesses and the findings cannot be shown to be plainly wrong.7
Submissions
[17] The written submissions for Mr Gounder were very brief, being less than one page, and it was difficult to ascertain clearly the basis for the points of appeal.
3 Criminal Procedure Act 2011, s 232(2)(b).
4 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
5 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
6 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78] and [28].
7 See R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [76], [83], [84]. Austin, Nichols & Co
Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5], [13].
[18] Mr Mohamed’s points, in the order in which they are presented in the written submissions, are as follows:
(a) the Judge erroneously considered Mr Gounder’s previous convictions as an ingredient of the charge or alternatively admitted them prematurely, despite protests by the appellant’s counsel;
(b)“Judicial Misconduct” – the Judge wrongly remanded the appellant in custody and wrongly adjourned the hearing part-heard;
(c) the Judge was wrong to accept the evidence of Mr Breen, as his evidence was unreliable, and she rejected the appellant’s evidence without giving any reasons;
(d)having regard to the law applicable and the evidence on record, the decision is wrong.
[19] Mr Stevens for the respondent, submits there is no error in the Judge’s
decision and the appeal should accordingly be dismissed.
Analysis
Previous convictions
[20] The Judge was necessarily required to be informed about the appellant’s previous convictions because the charge was one of driving with excess blood alcohol, third or subsequent.
[21] The wording of s 56(4) necessitates the defendant having at least two previous convictions for excess breath or blood alcohol. That is the extent to which Mr Gounder’s previous convictions were considered by the Judge to be relevant.
[22] To be clear, there is nothing to suggest that the Judge referred to Mr Gounder’s previous convictions prematurely, or that she relied on his conviction history to infer guilt without properly assessing the strength of the evidence before her. In the notes of evidence, the Judge said:
… I’ve found him guilty. I'm satisfied beyond reasonable doubt that he drove with excess blood alcohol on that day. So that’s the offence and I am satisfied on his previous convictions that he’s got more than two …
Judicial misconduct - adjournment and remand in custody
[23] Mr Mohamed submits that the Judge wrongly adjourned the hearing part- heard and wrongly remanded the appellant in custody. He says these matters suggest her judgment was clouded, with the effect that the trial was unfair.
[24] This submission must be addressed in light of the context. From the notes of evidence, it seems that Mr Mohamed objected to a certificate of Mr Gounder’s previous convictions being produced in evidence, or objected to the Court relying on the certificate, it is not clear which. The matter was consequently stood down until
2.15 pm that afternoon so that the Registrar could give evidence about Mr Gounder’s previous convictions. During that adjournment period, Mr Gounder was remanded in custody.
[25] Mr Mohamed accepts that the Judge had the power to adjourn mid-hearing. He did not consider she could do so to enable the contest to the certificate to be addressed. He did not provide any authority and I see nothing to limit the Judge’s ability to adjourn.
[26] The power to adjourn falls within s 167 of the Criminal Procedure Act.
[27] In terms of dealing with a defendant on an adjournment, s 168 relevantly provides:
(1) If a proceeding is adjourned, a judicial officer or Registrar may, subject to sections 171 and 172, and in accordance with any applicable provisions of the Bail Act 2000,—
(a) allow the defendant to go at large; or
(b) grant the defendant bail under the Bail Act 2000; or
(c) if the defendant is liable on conviction to a sentence of imprisonment or if the defendant has been arrested, remand the defendant in custody.
…
(4) If a defendant is remanded in custody under subsection (1)(c), the judicial officer or Registrar must issue a warrant for the detention of the defendant in a prison—
(a) for the period of the adjournment; or
(b) pending and during the defendant’s trial; or
(c) pending the defendant being brought up for sentence and during his or her sentencing.
…
[28] The Judge’s power to remand Mr Gounder in custody is contained in s 168(1)(c) as he had been arrested, and he was also liable on conviction to a sentence of imprisonment. I note that subs (4) of s 168 does not apply here because Mr Gounder was not detained in prison. He remained in the custody of the Court.
[29] While the Judge was able to remand Mr Gounder in custody under s 168, she was arguably wrong to do so, bearing in mind the applicable provisions of the Bail Act.
[30] However, this is not a bail appeal.
[31] It does appear that the Judge over-reacted to the position taken by Mr Gounder on the certificate. But unless the arguable error and the over-reaction led to a real risk that the outcome of the trial was affected, or resulted in an unfair trial, then the conviction is unaffected.
[32] In my view, the unfortunate incident over the certificate and the remand of Mr Gounder did not flow into any subsequent aspect of the trial or the judgment, or affect the outcome of the trial. There is no indication of annoyance or possible unfairness, other than literally around that incident. The judgment is carefully considered and well-founded.
[33] I therefore find against this point, or these points, of appeal.
Preferring evidence of Mr Breen over that of Mr Gounder
[34] In my assessment, the Judge was entitled to prefer the evidence of Mr Breen. As I have said, an appellate court will be slow in any event to depart from findings of credibility and reliability, given the Judge at first instance would have had the benefit of seeing and hearing the witnesses at trial. In this case, the Judge not only had the benefit of seeing the witnesses, there were a number of factors clearly supporting her assessment. Mr Breen’s version of events was corroborated by his police notebook records. Mr Gounder’s counsel did not identify any particular indicators of unreliability or inconsistency in Mr Breen’s evidence.
[35] On the other hand, the Judge had good reason to cast doubt on the credibility and reliability of Mr Gounder and his version of events. For example, when it was put to Mr Gounder that he purposely gave Mr Breen false details, he explained:
(a) He did not give a false name (by saying his surname was Sami when in fact that is his middle name, or spelling his first name, Chris, with a
‘K’ rather than a ‘C’). Rather, he said Mr Breen was probably just confused.
(b)He did not give an incorrect date of birth (being 14 August 1977, when his actual birth date is 13 April 1977).
(c) He said “Mountford Road” was his address because he understood Mr Breen to be asking where Coxhead was (that being his actual address).
[36] It would seem too coincidental that Mr Breen would have misheard, confused or misunderstood not one but a number of Mr Gounder’s relevant details.
[37] Mr Mohamed submits that the Judge did not give reasons for accepting
Mr Breen’s evidence. However, she did so quite clearly at [13] of her oral judgment. [38] In my view, there is no substance in this point of appeal.
General submission that decision is wrong
[39] As a final wrap-up point in his written submission, Mr Mohamed submits that having regard to the law and the evidence, the decision is wrong.
[40] There is no indication in the written or oral submissions of any legal or factual errors, save the three specific points that I have already covered. I therefore do not take this general point any further.
Conclusion
[41] I agree with the respondent that any errors or irregularities there may have been, clearly did not amount to a miscarriage of justice in terms of the legislation and the Supreme Court authority of Matenga v R.
[42] For the reasons given, the appeal is dismissed.
[43] Mr Mohamed asked if the disqualification could be deferred to tomorrow morning to enable Mr Gounder to drive home. As the respondent has no objection, I order that Mr Gounder’s disqualification from driving will commence on Tuesday,
16 February 2016.
Hinton J
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