Housden v Police - [2017] NZHC 2203

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-404-205 [2017] NZHC 2203

BETWEEN
OWEN COLIN HOUSDEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 September 2017

Counsel:

O C Housden, in person, Appellant
M L Clarke-Parker for Respondent

Judgment:

12 September 2017

JUDGMENT OF HEATH J

This judgment was delivered by me on 12 September 2017 at 12.00 midday pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland
Copy to:
O C Housden, Appellant

HOUSDEN v NEW ZEALAND POLICE [2017] NZHC 2203 [12 September 2017]

The appeal

[1] Mr Housden was charged that, on 1 April 2016, he refused to accompany an enforcement officer without delay to a place where an evidential breath test could be taken,1 and refused to permit a blood specimen to be taken having been required to do so.2 He pleaded not guilty to those charges. Mr Housden’s primary concern was that he had not been driving at the time he was asked to accompany the police
officer. He regarded the charges as an injustice to him.

[2] Following a defended hearing in the District Court at North Shore on 22 May

2017, Judge McAuslan found Mr Housden guilty,3 and entered convictions on each charge. She sentenced Mr Housden to 100 hours’ community work, and imposed an indefinite disqualification from holding or obtaining a driver licence.4

[3] Mr Housden gave evidence before the District Court. He contested the fact that he had been driving a motor vehicle at the time of the events that gave rise to the charges. Mr Housden described evidence given on behalf of the prosecutor as “far- fetched”.

[4] Mr Housden appeals against both conviction and sentence.

The District Court decision

[5] In an oral judgment given immediately after the hearing, Judge McAuslan traversed the evidence in some detail. Having done so, she rejected Mr Housden’s evidence in favour of the enforcement officer, Constable McLauchlan’s. She said:5

[37] The difficulty with [Mr Housden’s] evidence is that it is in essence contradictory because he claimed initially in his evidence that he refused the breath screening test because he had not been driving and then he goes on to state that he was never asked to blow into a device by Constable McLauchlan at all and the breath screening test simply did not happen. I take full note of the defence evidence in that regard.

1      Land Transport Act 1998, s 69.
2      Ibid, s 72.
3      New Zealand Police v Housden [2017] NZDC 13029.
4      New Zealand Police v Housden [2017] NZDC 15732.
5      New Zealand Police v Housden [2017] NZDC 13029, at paras [37]–[41].

[38] I also take full note of the constable’s evidence when he was adamant that this step took place. He gave entirely routine evidence of processing a motorist suspected of having consumed alcohol prior to driving. Moreover, he had notes made at the time and then the procedure sheet…

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.

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Details

Case: [2017] NZHC 2203
Decision Date: 12 September 2017

CaseChat Overview and Summary

In the case of Housden v Police, Owen Housden appealed against his conviction and sentence for refusing to accompany an enforcement officer to a location for an evidential breath test and refusing to permit a blood specimen to be taken. The District Court found Mr Housden guilty and sentenced him to 100 hours of community work and an indefinite disqualification from holding or obtaining a driver licence. Mr Housden argued that he was not driving at the time of the events and that he had not been asked to take a breath screening test.

The legal issues in the case were whether the enforcement officer had good cause to suspect Mr Housden had recently committed an offence involving driving a motor vehicle, and whether the District Court Judge erred in her assessment of the evidence. The court had to determine if there was a miscarriage of justice and if the sentence was appropriate.

The High Court found that the District Court Judge was entitled to make credibility findings in favour of the enforcement officer and against Mr Housden. The court held that an enforcement officer may require a person to undergo a breath screening test if they have good cause to suspect the person has recently committed an offence involving the driving of a motor vehicle. As long as the constable had the requisite belief that Mr Housden had recently committed an offence by driving while intoxicated, he was entitled to ask Mr Housden to accompany him. The court concluded that there was no basis to interfere with the conviction and sentence, and dismissed the appeal against both conviction and sentence.

Orders