Heard v Police
[2025] NZHC 318
•27 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-610
[2025] NZHC 318
BETWEEN JAMES WILLIAM HEARD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 February 2025 Appearances:
A Kashyap for Appellant A Chan for Respondent
Judgment:
27 February 2025
JUDGMENT OF LANG J
[on appeal against conviction]
This judgment was delivered by Justice Lang
On 27 February 2025 at 1.00 pm Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Kayes Fletcher Walker, Crown Solicitor at Manukau A Kashyap, Auckland
HEARD v POLICE [2025] NZHC 318 [27 February 2025]
[1] This appeal arises out of the events that occurred after the police stopped Mr Heard at a random breath testing checkpoint on 6 May 2022. He failed a passive breath test and breath screening test. He also admitted he had consumed alcohol. An evidential breath test then returned a result of 491 micrograms of alcohol per litre of breath. This led to Mr Heard being charged with driving with excess breath alcohol.1
[2] Mr Heard defended the charge but was found guilty following a Judge-alone trial.2 On 24 October 2024, Judge D P Robinson declined an application by Mr Heard for an order under s 106 of the Sentencing Act 2002 discharging him without conviction.3 The Judge then convicted and discharged Mr Heard. He also disqualified him from driving for a period of six months.
[3] Mr Heard appeals against the Judge’s decision refusing to grant him a discharge without conviction.
Approach
[4] An application for discharge without conviction is governed by s 106 of the Sentencing Act, which relevantly provides as follows:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
…
[5] In applying s 106, the Court must follow the guidance contained in s 107 of the Sentencing Act. This provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
1 Land Transport Act 1998, s 56(1) and (4).
2 Police v Heard [2024] NZDC 12620.
3 Police v Heard [2018] NZDC 26021.
[6] A court considering an application for discharge under s 106 must consider three issues.4 It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating features of the offending. It may also include aggravating and mitigating factors personal to the applicant. Next, the court must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that a particular consequence will occur.5 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory criteria have been met.
[7] The conventional principles apply to an appeal against refusal to grant a discharge under s 106.6 The appellate court must reach its own view as to whether the decision in the court below was correct. However, the onus is on the appellant to identify the respects in which the decision is said to be wrong.
The Judge’s decision
[8] The Judge noted that the excess breath alcohol reading was just short of twice the legal limit.7 He also noted that at 26 years of age Mr Heard has no previous convictions and had made a donation to charity and undertaken community work.8 The Judge observed that this was “a fairly standard drink-drive situation” and that for an offence of this kind the gravity of the offending was moderate.9
[9] Turning to the consequences of conviction, the Judge noted that Mr Heard advanced three grounds in support of his application. The first of these related to probable employment consequences, including the likelihood that a conviction would prevent him from completing his apprenticeship and cause him to lose his employment. Mr Heard also relied upon the effect a conviction was likely to have on future plans for overseas travel and the likely effect a conviction would have on his
4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].
5 DC (CA47/2013) v R [2013] NZCA 255 at [43].
6 R v Hughes, above n 4, at [11].
7 Police v Heard, above n 3, at [12].
8 At [13].
9 At [13].
mental health and wellbeing. The Judge held that the former was speculative and the latter was largely tied to the prospect that Mr Heard may lose his employment. The principal ground relied upon in support of the appeal relates to the likely effect a conviction will have on his employment.
[10]The Judge analysed this issue in the following way:
Employment
[16] In terms of the employment, your argument is that if you are convicted of the offence, or indeed disqualified for the offence, then you are likely to lose your employment. I am effectively left with your word on that point because, as you confirm in your affidavit, you have not disclosed this offending to your employer.
[17] There are a couple of issues with that. Firstly, the employer’s response largely is a matter for speculation and secondly, I do not know what the employer’s attitude would be in the event that you were discharged without conviction, but nevertheless disqualified. Your counsel’s argument is that you should neither be convicted nor disqualified.
[18] You are currently involved in an automotive training programme under the [redacted] brand and it is my understanding that you are about six months short of completing that. Y our concerns really are twofold. Firstly, are you going to be able to complete your apprenticeship and secondly, are you going to maintain employment or indeed be able to secure replacement employment if you were to lose the current employment?
[19] I have offered you the opportunity of deferring the application through to March next year with a view to completing the apprenticeship but understand that you want to proceed today.
[20] Ultimately, I am left quite uncertain around the employment position, that is because I do not have anything from your employer to confirm what their attitude would be, including whether they would maintain your employment if disqualification were mitigated say through a limited licence. The police I think are fair in criticising the absence of evidence on that point. It is certainly fairly routine for those seeking a discharge without conviction to tender evidence from their employer as to the likely consequences.
[21] In those circumstances, I need to measure carefully the weight that I give to your assertion that you would not be able to continue in your employment, be that long-term or through to completion of the apprenticeship. What I do note, however, is that the manual that has been annexed to your affidavit requires disclosure of driving convictions which have resulted in a conviction and/or loss of licence. It may be a ground for dismissal. The gap in the evidence is establishing that it is likely on credible evidence that such an outcome would occur.
[22] The point that the prosecution make is that it is of some significance that you have not disclosed this to your employer. While one could reasonably
expect disciplinary action to follow, there are a range of responses so it follows that, while I acknowledge the potential for loss of employment, I cannot really take it beyond there being a potential.
[23] The same can be said for the inability to obtain alternative employment. Again, I have to take you at your word that no other employer would touch you and that is something that I have a real hesitation in doing in the absence of evidence. Again, it is often the case that employment consultants and the like can give evidence around the potential for a conviction of this nature to impact. Beyond that I, of course, bear in mind that an employer has the right to know and generally the Court should be slow in concealing relevant matters from an employer.
(Footnotes omitted).
The appeal
[11] As I have already noted, Mr Heard focuses on the likely effect a conviction will have on his present and future employment. He maintains his concern that a conviction is likely to prevent him from completing his apprenticeship as an automotive mechanic. However, that concern was largely met by the Judge’s offer to defer sentencing until such time as Mr Heard had completed his apprenticeship.
[12] To similar effect, the likely consequence that a conviction would have on Mr Heard’s future employment prospects remains speculative to some extent. A conviction for driving with excess breath alcohol is not a bar to many forms of employment. Many persons who have sustained a conviction for this type of offending are also able to carry on in worthwhile and productive employment. However, for reasons I am about to discuss, I accept that Mr Heard is likely to face real issues in the future if he seeks alternative employment within his present industry.
[13] I consider the principal issue for present purposes is whether a conviction is likely to create a real and appreciable risk that Mr Heard will lose his present employment. This prospect is plainly a major concern to him because the apprenticeship was highly sought after and he has dedicated most of the last four years to completing it. He is nearly at the end of this process. Completion of the apprenticeship will enable him to work on high value motor vehicles sold and serviced by his employer. The prospect that he may lose this employment plainly weighs heavily upon Mr Heard given the lengths he has gone to thus far to obtain and complete his apprenticeship.
[14] As will be evident from the Judge’s remarks, Mr Heard filed an affidavit in the District Court in which he said he believed he would lose his employment if he was convicted of driving with excess breath alcohol. Mr Heard also produced a copy of the guidelines for employees that his employer has produced. This states that employees may face summary dismissal for serious misconduct at or outside work. This includes conduct that results in or may result in the employee being charged with a criminal offence and/or loss of driver’s licence. Grounds for dismissal will also exist where an employee is prohibited by law from driving a vehicle and it is necessary for the employee to drive a vehicle in order to carry out his or her duties.
[15] Mr Heard seeks to supplement this evidence with a further affirmation filed in support of the appeal. This is by Mr [P], who is currently employed as a Master Technician by another large dealership in the same industry as Mr Heard.10 As in the case of Mr Heard’s employer, Mr P’s dealership is required to abide by quality and performance guidelines promulgated by a major European automobile distributorship. Mr P has had 27 years’ experience in the industry and is familiar with the guidelines.
[16] I gratefully adopt the following summary of Mr P’s evidence from the submissions for the respondent:
(1)In Mr P’s experience, prospective employers insist on a “clean” New Zealand drivers licence for any future employee.
(2)If Mr Heard was convicted and disqualified, Mr P could not think of any dealership who would be prepared to re employ him.
(3)If Mr Heard was involved in an accident, his employer would be required to disclose any fact that could avoid insurance liability. A conviction and loss of licence would exclude liability and put the employer at risk of having cover declined.
(4)Mr Heard’s duties as an apprentice would include “road testing” and this would be precluded by a conviction and disqualification.
(5)The unpredictability and frequency of road testing could not be met by a limited licence.
(6)If Mr Heard could not carry out the road-testing part of his role as a technician, there is a real and appreciable risk of his dismissal.
10 Mr P’s name has been redacted for privacy reasons.
[17] The respondent opposes Mr P’s affirmation being admitted on the basis that it does not meet the test for fresh evidence confirmed by the Privy Council in Lundy v R.11 In that case, the Privy Council observed:12
The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.
[18] I accept that Mr P’s evidence cannot realistically be regarded as fresh because there is no apparent reason why Mr Heard could not have placed it before the Judge at sentencing. I also accept the respondent’s submission that Mr P may not be qualified to comment on some of the matters discussed in the affidavit. The likely effect of a conviction on insurance issues for Mr Heard’s employer is an example of this given that he could not be familiar with the terms of the employer’s insurance cover.
[19] I consider Mr P’s evidence is nevertheless helpful and cogent because he is independent of Mr Heard and he has a great deal of experience in the same industry. He is therefore well qualified to assist the Court as to the likely effect of a conviction on a person in Mr Heard’s position.
Analysis
Gravity of offending
[20] Neither counsel takes issue with the Judge’s conclusion that the overall gravity of the offending was moderate but I take a slightly different view. I accept that any offence involving driving with excess breath or blood alcohol must be regarded as a matter of concern. Further, Mr Heard cannot claim credit for a guilty plea. However, Mr Heard was just 24 years of age when he committed the offence. His breath alcohol reading was not particularly high compared with many that come before the courts and
11 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.
12 At [120].
the offending was not accompanied by any other form of driving misconduct. As the Judge noted, this was a “standard” drink driving offence. I would therefore categorise the overall gravity of the offending as low to moderate.
Consequences of conviction
[21] The Judge concluded that, although there was the potential for loss of employment, this was not sufficient to meet the required threshold of being a real and appreciable risk. I consider the evidence adduced on the appeal significantly elevates the likelihood that Mr Heard will lose his employment if he is convicted and disqualified from driving.
[22] In particular, I rely on Mr P’s evidence that major employers in Mr Heard’s industry insist on prospective employees having a “clean” driver’s licence. If that is the case for prospective employees, it is also highly likely to be the case for existing employees. Where an employee commits an offence that affects their licence, I accept that the employee’s employment will be in jeopardy.
[23] I place slightly less weight on the issue of the effect of a conviction on Mr Heard’s ability to road test vehicles in his employer’s possession or care. It may be possible for Mr Heard to obtain a limited licence that permits him to drive such vehicles within working hours and solely for purposes relating to his employment. However, s 104(1) of the Land Transport Act 1998 prohibits any order granting a limited licence from being made before the expiration of 28 days from the date the order of disqualification is made. Mr Heard’s employer may not be prepared to wait that long. It follows that the possibility Mr Heard may be able to obtain a limited licence does not provide a complete answer to this issue.
[24] For the reasons I have given I accept that there is a real and appreciable prospect that Mr Heard will lose his present employment and that this will be a major blow for him. It is also likely to constrict or limit his ability to obtain further employment in the same industry.
[25] Taking these factors into account, I have concluded that the consequences of a conviction are likely to be serious for Mr Heard in terms of his present and future
employment. Given that the overall gravity of the offending is low to moderate, I am satisfied the consequences of a conviction are wholly out of proportion to the gravity of the offending.
Result
[26] The appeal is allowed. The conviction and order for disqualification are set aside.
Lang J
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