Gounder v Police - [2016] NZHC 170

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 Respondent

Judgment:

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…

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: [2016] NZHC 170
Decision Date: 15 February 2016

CaseChat Overview and Summary

In the case of Gounder v Police, the appellant, Mr Gounder, appealed against his conviction for driving with excess alcohol, third or subsequent, and his sentence of five months' home detention with conditions, as well as his indefinite disqualification from driving. The appeal was heard by Hinton J at the Auckland Registry of the High Court. The primary issue before the court was whether the District Court's decision to convict Mr Gounder was flawed to the extent that a miscarriage of justice had occurred.

The court examined several points of appeal, including whether the District Court Judge erroneously considered Mr Gounder's previous convictions, whether the Judge's actions constituted judicial misconduct, and whether the Judge erred in preferring the evidence of Mr Breen, a police officer, over Mr Gounder's evidence. The court found that the Judge was required to consider Mr Gounder's previous convictions as part of the charge and that the Judge's decision to remand him in custody was within her powers, though arguably not ideal under the Bail Act. Furthermore, the court upheld the Judge's credibility assessment in favour of Mr Breen's testimony over Mr Gounder's, based on corroborative evidence and inconsistencies in Mr Gounder's account.

The court concluded that any errors in the District Court's proceedings did not amount to a miscarriage of justice, as per the criteria set out in Matenga v R. Therefore, the appeal was dismissed, and Mr Gounder's disqualification from driving was deferred to allow him to drive home.

Orders