Holley v Police
[2012] NZHC 3431
•14 December 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000237 [2012] NZHC 3431
BETWEEN CRAIG HOLLEY Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 29 October 2012
Appearances: Z K Mohamed for Appellant
A R Longdill for Respondent
Judgment: 14 December 2012
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 14 December 2012 at 5:00 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date…………………………..
Solicitors: Z Mohamed, P O Box 39119, Howick, Auckland 2145
Fax: (09) 533-7316
Meredith Connell, P O Box 2213, Auckland 1140Fax: (09) 336-7629 – A Longdill
HOLLEY V NZ POLICE HC AK CRI-2012-404-000237 [14 December 2012]
[1] The appellant, Craig Holley, was stopped by police on Riddell Road, Glendowie, around midnight on 8 May 2011. He failed an initial breath alcohol screening test. A subsequent evidential breath test gave a result of 778 micrograms of alcohol per litre of breath, nearly double the legal limit of 400 micrograms of alcohol per litre of breath. Following a defended hearing in the Auckland District Court before Judge Fleming, Mr Holley was convicted of driving with excess breath
alcohol (third or subsequent).[1] Mr Holley was disqualified for one year and one day
and ordered to pay a $1,000 fine and Court costs of $132.89. He appeals his conviction but not his sentence.
[1] Police v Holley DC Auckland CRI-2011-004-008498, 17 May 2012.
[2] Mr Mohamed, for Mr Holley, advanced a number of grounds of appeal in his written submissions. In addition, at the beginning of the hearing, he signalled that he wished to consider raising a further ground and was granted leave to do so. The grounds of appeal ultimately advanced are errors by the Judge in:
(a) Failing to advise Mr Holley of his right to elect a trial by jury; (b) Failing to give adequate reasons for her decision;
(c) Wrongly admitting into evidence and taking into account a procedure check sheet;
(d) Admitting evidence of Mr Holley’s previous convictions at too early a
stage; and
(e) Failing to deal adequately or at all with the argument that Mr Holley was incorrectly issued with a summons to appear under s 19A of the Summary Proceedings Act 1957 rather than s 19B.
Right to elect a trial by jury
[3] This point was first raised by Mr Mohamed at the commencement of the appeal as a result of Mr Mohamed overhearing argument in an appeal I heard
directly before Mr Holley’s appeal. At Mr Mohamed’s request I allowed him to take instructions regarding a waiver of privilege so that the point could be raised. Mr Holley filed an affidavit. Mr Mohamed declined to file an affidavit on the ground that his memorandum as counsel is sufficient. I accept that. The combined effect of Mr Holley’s affidavit and Mr Mohamed’s memorandum is to confirm that there was no discussion between the two about a jury trial.
[4] At the outset of the hearing the Judge was required by s 66(2) of the Summary Proceedings Act to advise Mr Holley of his right to elect a jury trial. There is no record of that being done.
[5] The right to elect a trial by jury has been described as “fundamental to our criminal justice system”.[2] However, although the right is fundamental, failure to provide the opportunity to make an election is not necessarily fatal; the question is whether there was a miscarriage of justice as a result of not being advised. The reasons for this were explained in Abraham v District Court at Auckland:[3]
[2] Stoves v Police HC Christchurch CRI-2003-409-000067, 28 October 2003 at [15].
[3] Abraham v District Court at Auckland [2007] NZCA 598, [2008] 2 NZLR 352.
[53] … the obligation under s 66(2) is to advise “before the charge is gone into”. This allows some flexibility in the sense that the required advice can be given at any time before the trial commences or a guilty plea is entered, rather than at some set point in the process.
[54] We consider that these two features of s 66 provide some support for the view that a Court’s failure to inform in breach of s 66(2) is not to be regarded as resulting in a nullity but is to be dealt with by means of the miscarriage proviso. We find further support for this view in two other considerations.
[55] First, it is clear from the judgment of the Supreme Court in R v Condon [2007] 1 NZLR 300 at para [77] that, even though the right to a fair trial, as affirmed by s 25(a) of the NZBORA, is an absolute right, an unfair trial is not a nullity. As Deane J said in Jago v District Court of New South Wales (1989) 168 CLR 23 at p 57, an acquittal after an unfair trial is ordinarily final and decisive. In terms of s 385(1) of the Crimes Act, then, an appeal against conviction after a trial which is found to be unfair will be allowed on the miscarriage of justice ground in s 385(1)(c), not the nullity ground in s 385(1)(d). This analysis applies equally, in our view, where there is a failure to inform of the right to trial by jury contrary to s 66(2) of the SPA. An acquittal after a summary trial in a case where the s 66(2) obligation was not met is still an effective acquittal. Where a conviction after such a trial is quashed on appeal, that will bring the matter to an end
despite the procedural failure … A trial in such circumstances is not, then, a
nullity.
[56] Secondly, English law has undergone what has been described as a “sea change” in this area, moving from a rigid position where a procedural failure was likely to be fatal to an approach which focuses on whether the failure has caused prejudice … The current approach was summarised in R v Ashton [2000] 1 WLR 181 (CA) at paras 4-5 as follows:
“… whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (‘a procedural failure’) the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceeding to continue …”
[6] Recent cases have suggested that the failure to advise of the right to a trial by jury will generally give rise to a miscarriage of justice.[4] In this case, however, I am satisfied that no miscarriage of justice arose from the Judge’s failure to advise Mr Holley of his right to a trial by jury. This was not a case in which the credibility or reliability of any witness was in issue. The defence focused on procedural errors alleged to have been made by the police officer, including the form of the summons
issued and the erroneous spelling of Mr Holley’s name on certain forms. These were matters on which a jury would have been directed regarding the legal position. As a result, the identity of the fact finder could not have affected the outcome.
[4] For example, Lose v Police HC Auckland CRI-2010-404-500, 4 July 2011; Parker v Police HC Auckland CRI-2011-404-449, 1 June 2012.
[7] This ground of appeal therefore fails.
Adequacy of reasons
[8] Although it is not a requirement that Judges give reasons, it is recognised as good judicial practice to do so. The position is summarised by the Court of Appeal
in R v Awatere:[5]
In the end the matter of providing reasons for a decision and the extent to which they might need to be spelled out are matters of practice for domestic determination by this Court in the New Zealand environment. And when the infrequency of the problem is weighed against the volume of cases coming before the District Court, together with the present powers of the High Court to ensure that justice will be achieved by one means or another, we have concluded that it would be both undesirable and impractical to lay down an inflexible rule of universal application that would result in what Laskin CJC has described as an “indiscriminate requirement of reasons”. Nonetheless, Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion. Indeed failure to follow that normal judicial practice might well jeopardise the decision on appeal. It could do so because a potential appellant might seem to be unduly prejudiced or it could do so by leaving it open for the appellate Court to infer that there are in fact no adequate reasons to support it and so in either case act more readily than otherwise it would have done to order a rehearing or to rehear the case itself or to make an order that proper and adequate reasons are to be supplied or even to quash the verdict outright.
[5] R v Awatere [1982] 1 NZLR 644 (CA) at 648-649; see also Lewis v Wilson & Horton Ltd [2000] 3
NZLR 546 (CA).
[9] The hearing before Judge Fleming took less than a day. It appears to have commenced at or about 10.00 am and it concluded shortly before 3.00 pm. The prosecution called one witness, the Constable who had stopped Mr Holley and there was not challenge to Constable Hoogenberg’s credibility or reliability. There was no issue regarding Mr Holley’s identity as the driver. Cross-examination was confined to procedural issues. There was no evidence for the defence.
[10] The Judge gave an oral judgment the same day. When transcribed the judgment ran to two pages. The Judge identified the arguments that Mr Mohamed had advanced regarding the summons, she referred to the evidence of the Constable who had processed Mr Holley and pronounced herself satisfied that the procedure had been correctly followed and that the charge was proved. She also referred to the evidence relating to Mr Holley’s previous convictions and recorded that she was satisfied that he had been convicted at least twice of qualifying offences.
[11] Whether or not the Judge made errors in her conclusions are matters that I come to in relation to the other grounds of appeal. It cannot, however, be said that the reasons the Judge gave were inadequate given the nature of the proceeding.
Admission of the procedure check sheet
[12] In his evidence Constable Hoogenberg said that when he and Mr Holley arrived at the Glen Innes police station he obtained a breath and alcohol procedure check sheet. He described going through the check sheet, which comprised several parts. They included the Bill of Rights form, which Mr Holley signed. The Constable also signed the form, administered the evidential breath test and stapled the printout from that test onto the back of the form. He also noted the commencement and expiry of the 10 minute period allowed to the appellant to elect a blood test.
[13] The form was produced as police exhibit 1. During the course of the Constable’s evidence Mr Mohamed objected to the form being produced in its entirety, indicating that only those parts relating to the Bill of Rights advice that Mr Holley signed could be admitted. The objection was made on the basis that, although the Constable could use the form to refresh his memory and that the part of the form signed by the defendant could be produced, other aspects of the sheet should not be admitted. The issue was left on the following basis:
The Court: But he is not going to do this, he is going to give evidence and then he can produce the form and I have listened to what the evidence is about what he said and the fact that the form includes things that he has not given in evidence will be something that I will put a line through, is there any problem with that?
Mr Mohamed: No Your Honour as long as –
The Court: I am taking notes.
MrMohamed: As long as Your Honour would ignore those parts of the form.
The Court: Yes and when we are going to produce you and I can go through and agree what he has not given evidence about, okay.
[14] Following production of the form the Judge then asked Mr Mohamed which parts of the form he wished her to cross out. This led to the following exchange:
MrMohamed: I believe that Your Honour relies on his evidence that is given to Your Honour verbally and ignore everything else
written on the form except for the first page where he has said that he recorded those matters on the information given by the defendant and the observations made by him I cannot object to that Your Honour.
The Court: As I understand the evidence the Constable has followed through this form as he has been processing the defendant and noted on the form as he has done so, so just explain to me, sorry, I have not seen these forms before, so it is something new to me, so tell me what the problem is with producing this when in fact this is part of the evidence of the Constable because he says he filled out the form at the time he was processing the defendant.
MrMohamed: Your Honour he has given evidence on this form is just confirm that evidence then, it’s the documentary evidence that’s confirming the evidence that he has given Your Honour. If it is true, I think it’s under section 22 of the Evidence Act. If this intended to only corroborate it, Your Honour, then obviously it’s got not value. If it only corroborates for his story on oath then it is of no value Your Honour.
The Court: Let us wait and see if there is a problem in it shall we? That might be the better way of dealing with this, because I have got the Constable’s evidence that he followed through the form and filled that form as he is going, it is partly written by himself and partly written by the defendant, I guess I will be in a bit of trouble grasping what the problem is but there may be no problem, let us see how we go, shall we.
[15] Mr Mohamed’s argument was that it appeared from the Judge’s reasons that she relied subsequently upon the check sheet without considering the question of its admissibility. The Judge said:
[4] I have heard evidence from the [C]onstable who undertook the procedure and processed Mr Holley throughout. I am quite satisfied beyond a reasonable doubt that every step of the procedure was correctly followed by the [C]onstable. I am also satisfied beyond reasonable doubt that the charge of driving with an excess breath alcohol as it appears in the information, is proved.
[16] It is clear that Constable Hoogenberg was only using the procedure check sheet to refresh his memory. The fact that he had advised Mr Holley of his rights under the New Zealand Bill of Rights Act 1990 was not in issue. There was, therefore, no need to produce the check sheet. Nor did the check sheet satisfy the requirements of s 35 to be admissible as a prior consistent statement.
[17] However, whether the check sheet should have been admitted or not could have made no difference to the outcome. It is apparent that the Constable gave evidence (using the check sheet to refresh his memory) of the necessary procedural steps. Since the Judge referred specifically to the oral evidence of the Constable and did not refer at all to the check sheet I cannot accept Mr Mohamed’s submission that she relied substantially upon that sheet in reaching her decision. This ground of appeal fails.
Admission of previous convictions too early
[18] This ground of appeal is that, although previous convictions are not an ingredient of the offence, the Judge admitted evidence of certificates of previous convictions. Mr Mohamed submitted that the usual procedure in a summary trial, and the procedure that should have been adopted in this case, is to follow the jury
trial procedure described in R v Morunga:[6]
[4] The trial was split into two phases. The jury was first empanelled and determined, on what counsel called a dummy indictment, whether Mr Morunga was guilty of driving with excess blood alcohol. Having found that he was, the jury was not discharged but was presented with the full indictment containing the allegation that it was a third or subsequent offence.
[6] R v Morunga [2009] NZCA 292 at [4].
[19] Mr Mohamed asserted that the Judge made an error in not following this procedure. Adherence to the jury trial procedure by a judge sitting alone was considered by MacKenzie J in O’Connor v Police.[7] It was said in that case that the procedure described in Morunga is necessary to ensure that there is no unfair prejudice to the accused by the jury becoming aware of previous convictions. However, MacKenzie J considered that that risk did not exist where the matter was being decided by judge alone:[8]
[7] O’Connor v Police HC Wellington CRI-2011-405-36, 29 June 2011 at [9].
[8] At [13].
I do not accept [that] Mr Johnson’s submission that the appellant may have been prejudiced by the introduction of the evidence of previous convictions at that point in the trial. The [J]udge necessarily had to be aware of the allegation that the appellant had previous convictions, because s 69(2) [of the Land Transport Act 1988] required the information to disclose the existence of those convictions. Judges hearing summary proceedings are well used to putting aside any prejudice resulting from knowledge of the past
history of the defendant. The ruling that the evidence was admissible at that point was correct.
[20] The Judge must have been aware of the existence of previous convictions from the information sheet. There was no suggestion that Mr Holley did not, in fact, have previous convictions.
[21] Mr Mohamed argued that there was prejudice to Mr Holley because the admission of the certificates before he made his election not to give evidence influenced that decision. In evidence, the Constable said that after being asked whether he wanted to consult a lawyer Mr Holley said “No” and then added “Not at this time”. Mr Mohamed asked him what he understood Mr Holley to mean by that and he said that he understood him to mean “not at that point in time he wanted to speak to a lawyer, maybe another time”.
[22] Mr Mohamed submitted that Mr Holley might have given evidence as to what he meant and the reason he did not contact a lawyer before the evidential breath test but was prevented from doing so by the risk that he would be cross-examined on his previous convictions.
[23] This submission was unaccompanied by evidence from Mr Holley on the point, so I cannot tell what Mr Holley may have said had he given evidence. It is speculative to try and assess the effect on the outcome of Mr Holley electing to give evidence.
[24] This point could only have significance if Mr Holley could demonstrate that it would have led to a miscarriage of justice. Mr Mohamed’s bald assertion that Mr Holley might have given evidence as to what he meant in his discussion with Constable Hoogenberg, unsupported by evidence from Mr Holley as to what he might have said and how it might have made a difference, means that this ground of appeal must also fail.
[25] It is common ground that Mr Holley was incorrectly issued with a summons to appear in the Auckland District Court pursuant to s 19A of the Summary Proceedings Act (which deals with arrest without warrant) rather than s 19B (which deals with summonses following a positive evidential breath test). It was also accepted that Mr Holley responded to the summons prior to the first call.
[26] Mr Mohamed argued that the evidence showed a deliberate decision by Constable Hoogenberg to adopt the s 19A procedure even though he knew that Mr Holley had not been arrested, an error that Mr Mohamed submitted could not be cured by s 204 of the Summary Proceedings Act.
[27] Section 204 provides that:
No information, complaint, summons, conviction, sentence, order, bond, warrant or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission or want of form unless the Court is satisfied that there has been a miscarriage of justice.
[28] Mr Mohamed relied on Lang J’s decision in Wainhouse v Police in which s 204 was held not to operate so as to save a deficient information where the Act required strict compliance with a prescribed time frame.[9] However, I do not consider that that decision assists in this case. Wainhouse was concerned with the stipulated time frame for filing an information. A summons, however, is merely a vehicle to secure the attendance of the defendant at court.[10] I consider that the use of the wrong form of summons, in circumstances where Mr Holley was informed about the nature of the charge he faced and when he was required to attend court, did not result in a nullity. It was an irregularity that could be cured by s 204 and did not result in any
miscarriage of justice.
[9] Wainhouse v Police HC Auckland CRI-2009-404-68, 19 October 2009.
[10] McNeill v Ministry of Transport HC Dunedin AP12/92, 2 April 1992; Police v Rowe HC Auckland
AP256/97, 9 February 1998.
[29] The appeal is dismissed.
P Courtney J
Solicitors:
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