Housden v Police

[2018] NZCA 60

IN THE COURT OF APPEAL OF NEW ZEALAND

CA569/2017
[2018] NZCA 60

BETWEEN	OWEN COLIN HOUSDEN Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Cooper, Ellis and Katz JJ

Counsel:

Applicant in Person
J E Mildenhall for Respondent

Judgment:

(On the papers)

21 March 2018 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

1. Mr Housden was convicted after a judge alone trial in the District Court on charges of:[1]

   (a)refusing to accompany an enforcement officer to a place where an evidential breath test could be taken;[2] and

   (b)refusing to permit a blood specimen to be taken.[3]

He was sentenced to 100 hours’ community work and disqualified from driving indefinitely.[4]

[1]New Zealand Police v Housden [2017] NZDC 13029.

[2]Contrary to s 69 of the Land Transport Act 1998.

[3]Contrary to s 72 of the Land Transport Act 1998.

[4]New Zealand Police v Housden [2017] NZDC 15732.

1. He now seeks leave to bring a second appeal against both his conviction and sentence.[5]  The application for leave is to be determined on the papers and separately from the proposed appeal. 

   [5]Leave is required under ss 237 (conviction) and 253 (sentence) of the Criminal Procedure Act 2011.

2. We have concluded that leave to appeal should not be granted for the reasons which follow.

3. The legality of the actions of an enforcement officer in requiring Mr Housden to accompany him or her and then to undergo an evidential breath and/or blood test, depends on Mr Housden first having failed or refused to undergo a breath screening test.[6]  Although in the District Court Mr Housden disputed that he had been asked to take a breath screening test at all, he seems now to accept that, as the District Court Judge found, he refused to do so. 

   [6]Section 69(1)(c) of the  Land Transport Act provides that where someone refuses to undergo a breath screening test after having been required to do so by an enforcement officer under section 68 the officer may require that person to accompany the officer to a place where the person can undergo an evidential breath test or a blood test (or both).

4. The sole point sought to be raised by Mr Housden in his proposed appeal is that he could not be required to undergo a breath screening test because there was no evidence that he had been driving.  As was made clear by the evidence given by the Police at his trial, that was a point he made repeatedly to the Police at the time of the events in question.

5. In order to grant leave to bring a second appeal the Court must be satisfied that the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[7] The threshold is a high one.

   [7]Sections 237(2) and 253(3).

6. There can be no question that the threshold is not met in this case.  To the extent that the point raised by Mr Housden is factual, it is particular to his case and cannot be of any wider importance.  To the extent the point is a legal one, it is without merit.  Section 68(1)(b) of the Land Transport Act 1998 does not require proof of driving.  Rather, it empowers an enforcement officer to require a person whom the officer has good cause to suspect has recently committed an offence against this Act that involves driving to undergo a breath screening test. 

7. In Mr Housden’s case, the evidence at trial was that, in the early hours of 1 April 2016, police had been alerted to a possible drunk driver on Hurstmere Rd in Takapuna.  Upon arriving at Hurstmere Rd the officers found Mr Housden in the driver’s seat of his van.  The van was parked across a footpath with the keys in the ignition and the engine running.  One of the officers recognised Mr Housden from an encounter earlier that evening a short distance away, when she had been dealing with breaches of a liquor ban.  She had formed the view then that he was intoxicated, and he was still manifesting clear signs of intoxication. 

8. On any analysis, this evidence supports the conclusion that there were grounds for believing that Mr Housden had recently been driving while under the influence.  The statutory precondition imposed by s 69 was therefore met.  There can be no risk of miscarriage here.

9. The application for leave to appeal is dismissed. 

Solicitors:
Crown Law Office, Wellington for Respondent