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Gurney v Police

Gurney v Police

Case [2017] NZHC 1581 7 July 2017

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2017-441-000021 [2017] NZHC 1581

BETWEEN
PHILIP BARCLAY GURNEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 July 2017

Counsel:

P N Ross for Appellant
C R Stuart for Respondent

Judgment:

7 July 2017

JUDGMENT OF COLLINS J

Introduction

[1] On 9 February 2002, Mr Gurney and his mother attended a concert at the Mission Estate Vineyard in Napier. They shared a picnic and a bottle of wine while listening to performances by Mr Engelbert Humperdinck and “The Seekers”. After the concert Mr Gurney was stopped by the police while driving his mother’s vehicle. He underwent a breath alcohol test which produced a reading of 703 micrograms of alcohol per litre of breath.

[2] Slightly over 15 years later, Mr Gurney was convicted of driving with excess breath alcohol on the night of the concert.1 The delay between Mr Gurney’s alleged offending and his conviction signals that there are unusual features to this case.

[3] It is not now possible to determine everything that transpired between
9 February 2002 and Mr Gurney’s conviction on 10 April 2017. It is, however, possible to conclude that Judge Adeane, when he convicted Mr Gurney, made an

1 New Zealand Police v Gurney [2017] NZDC 7694.

GURNEY v NEW ZEALAND POLICE [2017] NZHC 1581 [7 July 2017]

error of law which requires me to now quash the conviction. The Judge erred when he failed to appreciate that the District Court no longer had jurisdiction to hear the charge against Mr Gurney because the prosecution did not obtain the consent of the Attorney-General to continue with the proceeding. I explain the jurisdictional impediment to the District Court hearing this charge in paragraphs [19] to [35] of this judgment.

Background

The court proceedings

[4] At the time of the offending Mr Gurney, who is a New Zealand trained lawyer, was living and working in Singapore. When stopped by the police he provided them with his permanent address in Singapore and with his mother’s Wellington address. Mr Gurney’s mother’s address is recorded on the information sheet filed in the Napier District Court on 12 February 2002.

[5] The case was first called in the Napier District Court on 13 February 2002. Mr Gurney arranged for a lawyer to represent him. The case was transferred to the Auckland District Court for hearing on 14 May 2002. The court file records his intention to plead guilty. Mr Gurney was represented by a different lawyer in the Auckland District Court on 14 May 2002. The court file states the “[defendant] is overseas permanently” and that the file should be transferred back to Napier as the “[defendant] will plead not guilty”.

[6] The case was called the following day in the Auckland District Court and adjourned to the Napier District Court to be called on 29 May 2002 for a not guilty plea to be entered and a defended hearing date to be allocated.

[7] Mr Gurney did not appear when the case…

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.

Continue reading Gurney v Police

Details

AGLC: Gurney v Police [2017] NZHC 1581
Case: [2017] NZHC 1581
Decision Date: 7 July 2017

CaseChat Overview and Summary

Philip Barclay Gurney was convicted of driving with excess breath alcohol following a 2002 incident. He appealed against the conviction on the basis that the District Court lacked jurisdiction to hear the case because the prosecution failed to obtain the consent of the Attorney-General to continue the proceedings. The appeal was heard by Collins J in the High Court of New Zealand. The central legal issue was whether the mandatory requirement under section 10B of the Crimes Act 1961 for the Attorney-General's consent was necessary for the District Court to retain jurisdiction over the case. The court considered whether the defendant's actions constituted absconding under section 399 of the Criminal Procedure Act 2011, and whether the repeal of section 10B had any bearing on the jurisdiction of the court. Collins J held that the District Court did not have jurisdiction to hear the case because the prosecution did not obtain the Attorney-General's consent. The mandatory nature of this requirement meant that the court could not proceed with the case. Collins J also noted that the repeal of section 10B did not affect the court's jurisdiction, as the court had already lost jurisdiction on 9 February 2012. The conviction was quashed, and the appeal was allowed.

Orders