Holley v Police - [2012] NZHC 3431

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 1140
Fax: (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)…

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 Holley v Police

Details

AGLC: Holley v Police [2012] NZHC 3431
Case: [2012] NZHC 3431
Decision Date: 14 December 2012

CaseChat Overview and Summary

Craig Holley was convicted of driving with excess breath alcohol, following a defended hearing in the Auckland District Court. 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. The court was required to determine whether there were any errors by the Judge that led to a miscarriage of justice, including whether Mr Holley was properly advised of his right to elect a trial by jury, whether the reasons given by the Judge were adequate, whether the procedure check sheet should have been admitted, whether evidence of Mr Holley’s previous convictions was admitted too early, and whether Mr Holley was incorrectly issued with a summons under s 19A of the Summary Proceedings Act rather than s 19B. The court found that there was no miscarriage of justice arising from the Judge’s failure to advise Mr Holley of his right to a trial by jury, as the identity of the fact finder could not have affected the outcome. The reasons provided by the Judge were deemed adequate, and the admission of the procedure check sheet and evidence of Mr Holley’s previous convictions did not result in any prejudice or miscarriage of justice. The court also found that the use of the wrong form of summons did not result in any miscarriage of justice, and could be cured by s 204 of the Summary Proceedings Act. The appeal was dismissed.

[1] Police v Holley DC Auckland CRI-2011-004-008498, 17 May 2012.
[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.
[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.
[5] R v Awatere [1982] 1 NZLR 644 (CA) at 648-649; see also Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA).
[6] R v Morunga [2009] NZCA 292 at [4].
[7] O’Connor v Police HC Wellington CRI-2011-405-36, 29 June 2011 at [9].
[8] At [13].
[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.

Orders