H v Police HC Auckland CRI 2008-404-172

[2008] NZHC 1697

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000172

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Counsel:         Appellant in person

E R Harrison for Respondent

Judgment:      4 November 2008

JUDGMENT (No 2) OF KEANE J

This judgment was delivered by Justice Keane on 4 November 2008 at 12pm pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

Copy to

D M H  , 13 Limeburners Street, Whangarei

H V  POLICE HC AK CRI 2008-404-000172  4 November 2008

[1]      On  23  September  2008   I  dismissed   H  ’   appeal   against convictions entered for two offences on 28 January 2007: driving under the influence of drink to such an extent as to be incapable, and transporting a female dog in a manner that caused her unnecessary distress. He seeks leave to appeal my decision to the Court of Appeal.

[2]      Three questions, Mr H   contends, warrant a grant of leave. The first is as to whether he ought ever to have been charged with or convicted of an offence against s 58(1) of the Land Transport Act 1998. He was not subjected, as he ought to have been, to the usually mandatory tests. Secondly, he contends, my conclusions of fact, like those of the Judge at first instance, are unsupported by or inconsistent with the evidence. Thirdly, he seeks to be excused the period of disqualification imposed, six months, if that continues to enure.

[3]      This application is opposed. No question of law of the significance required warrants, it is contended, the grant of leave to appeal.

Leave threshold

[4]      Section  144(1)  confers  an  ability  to  appeal  to  the  Court  of  Appeal  any question of law arising on a general appeal to this Court, but subject to leave. This Court, s 144(2) says, may grant leave if:

the question of law involved in the appeal which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[5]      In R v Slater [1997] 1 NZLR 211, CA, at 215, Thomas J, delivering the judgment, stated that s 144 does not confer a right to a second tier appeal. Finality is ordinarily to be anticipated on an appeal to this Court. He concluded:

Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

[6]      Even where a question appears to qualify on both counts, Thomas J added, this Court must still be of the opinion that the question is one worthy of a second tier appeal.

Two questions posed

[7]      Only the first two of the three questions I have identified could, conceivably, qualify for a grant of leave. That as to disqualification is an issue raised only now and goes rather to when Mr H  ’ period of disqualification commenced and whether that was ever deferred and has any balance to run. I will deal with in a moment.

[8]      Mr H  ’ first question, a question of law, is whether he ought to have been charged with and convicted of an offence against s 58 of the Land Transport Act 1998 when he had not undergone the tests usually mandatory. But the answer to that is, as I have said in my decision, that s 58 constitutes a discrete offence which does not require prior mandatory testing. The only issues were whether the charge was brought intelligibly and in good faith and was supported by direct evidence. The Judge held that in all respects it was and I agreed. Mr H   raises no new issue of law, nor one of the significance required.

[9]      Mr  H  ’  second  issue,  whether  the  Judge  at  first  instance  and  I  in affirming her decision, reached conclusions unsupported by or incompatible with the evidence does not, I consider, qualify as a question of law under s 144(1). Even if the points Mr H   makes have some force, and I do not believe they have, the Judge’s  findings,  and  I  consider  my  own,  did  have  at  the  least  an  arguable foundation. What Mr H   wishes to contest, and contest again, are issues of fact.

Order of disqualification

[10]     Mr H   seeks independently, on the appeal he wishes to bring, an order making retrospective any part of the period of disqualification imposed on him that has still to run. He has not driven, he says, for the last six months. It would work

[11]     This is not, as I have said, a question arising from my decision or that of the Judge at first instance that qualifies as a question of law warranting a grant of leave. If leave were granted, the Court of Appeal might deal with it consequentially. But it would have first to resolve in Mr H  ’ favour a question of law that does qualify for appeal. That apart, I am not clear what the present status of the order is.

[12]     This at least is clear. On 15 May 2008, the date on which the convictions Mr H   challenges were entered, as well as convicting him and ordering him to come up for sentence if called upon within 12 months, the Judge disqualified him for the driving offence for six months commencing that day. The period of disqualification then began, unless the Judge directed otherwise, or the Act itself otherwise provided: s 85, Land Transport Act 1998.

[13]     The Judge did not that day, under s 85(1), postpone the start date the period of disqualification commenced to run. Mr H   appealed on 12 June 2008 but that did not result in the order for disqualification becoming suspended. Section 124 of the  Summary  Proceedings  Act  1957  suspends  specific  warrants,  orders  and sentences. An order for disqualification is not amongst them. Mr H   had rather, when he appealed, to apply to the District Court for an order deferring the operation of the order until his appeal was determined: s 107(2), 1957 Act. Or if the District Court refused, to this Court: s 107(2A). I do not have any record of him doing either.

[14]      If then Mr H   did not obtain a deferral, the order for disqualification continued to run from its starting date, 15 May 2008, and will now be spent or nearly so. If, however, he did obtain a deferral that will have to cease, and no later than 36 hours after the date of the issue of this decision. The order will have to run for the balance of the period imposed: s 107(6).

Conclusions

[15]     Mr H  ’ application for leave to appeal to the Court of Appeal will be declined. He raises no question of law of such general or public importance, or of

[16]   As to the order for disqualification, there can be no order making it retrospective. If Mr H   did not obtain an order deferring its operation then any such order would serve no purpose. If he did obtain a deferral that must cease 36 hours after the date of the issue of this decision. The order will resume for the

balance of the period remaining. He would be wise to confirm what that balance is.

P.J. Keane  J