Housden v Police
[2017] NZHC 2203
•12 September 2017
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 RespondentJudgment:
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 completed shortly thereafter at the police station.
[39] It is asking a great deal to expect the Court to accept that such an important step would have been omitted, in particular when it is noted as having taken place here and he conceded that he did not do the passive breath test which of course is frequently done prior to the breath screening test. So either I accept that [Constable McLauchlan] came and indeed gave a far-fetched story as [Mr Housden] would have me believe or I accept his evidence as correct and, regrettably for [Mr Housden], he did impress as a reliable and credible witness, simply outlining as best as he can recall the events of the early hours of that morning. His recall, assisted by notes made at the time and the procedure sheet made at the time, was clearly better than the defendant’s.
[40] [Mr Housden’s] evidence in fact is the evidence that the Court accepts amounts to a far-fetched story. He would have the Court believe that despite the fact he was living in his van, and that would seem to be his only possessions at the time, he allowed someone he had never met before, and who he cannot remember even the name of, to get into the van while he was in the back and just drive off to Takapuna from Albany. That seems an unlikely scenario of itself but moreover his evidence with regard to the breath screening test is contradictory and I accept that in fact he refused and as he said, because he maintained throughout that he had not been the driver, that was what he maintained and so he refused when he was asked. He was asked to provide a breath screening test and he refused to undergo and that is the part of his evidence I accept. That is in accordance with the constable’s evidence.
[41] It follows therefore that the constable was entitled to require [Mr Housden] to accompany him without delay following that refusal and he accepts that he refused to do so and did so only after he was arrested. I am satisfied beyond reasonable doubt that that charge is proven and it is accepted that he refused to permit a blood specimen to be taken. Having found that the necessary prerequisites to that requirement have been made out, that charge is proven beyond reasonable doubt also.
(Emphasis added)
Submissions on appeal
[6] Mr Housden represented himself on appeal. His submissions were forwarded to a Registrar by email. I have taken them into account. The email repeats the evidence given before the Judge at the hearing. Mr Housden concludes his email by stating:
The reason [I am] appealing this decision … is the Police have stated they have CCTV footage of me committing the offences. I am yet to see the
footage, even though it is a year later. I wish to state again that I was not driving.
[7] For the prosecutor, Mr Clarke-Parker submits that whether Mr Housden was driving is irrelevant. The prosecution case was put on the basis that an enforcement officer may require a person to undergo a breath screening test without delay if he or she has good cause to suspect that person has recently committed an offence against the Land Transport Act 1998 (the Act) involving the driving of a motor vehicle.6
Once the breath screening test procedure is triggered, the enforcement officer may
require a person to accompany him or her to a place where an evidential breath test or blood test can be undertaken.7
Analysis
[8] Relevantly, ss 68 and 69 of the Act provide:
68 Who must undergo breath screening test
(1) An enforcement officer may require any of the following persons to undergo a breath screening test without delay:
(a) a driver of, or a person attempting to drive, a motor vehicle on a road:
(b) a person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:
(c) if an accident has occurred involving a motor vehicle,—
(i) the driver of the vehicle at the time of the accident;
or
(ii) if the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person whom the officer has good cause to suspect was in the motor vehicle at the time of the accident.
…
69 Who must undergo evidential breath test
(1) An enforcement officer may require a person to accompany an enforcement officer to a place where it is likely that the person can undergo
6 Land Transport Act 1998, s 68.
7 Ibid, s 69.
an evidential breath test or a blood test (or both) when required to do so by the officer, if,—
.…
[9] Section 68(1)(b) of the Act makes it clear that a person who is asked to accompany an enforcement officer does not need to be the actual driver of a vehicle. It is enough that the officer has good cause to suspect that the person had been driving the motor vehicle “recently”.8
[10] In Murphy v New Zealand Police,9 Faire J considered the circumstances in which an enforcement officer may have good cause to suspect that a person has recently committed an offence involving the driving of a motor vehicle. His Honour surveyed a number of earlier decisions of this Court, in doing so.10 It is enough to refer to Francis v Police.11 In that case, Randerson J said:12
[10] It is not in dispute that the issue of whether there was good cause to suspect that the appellant had been recently drinking and driving is a question of fact upon which the Judge must be satisfied to the civil standard, ie, on the balance of probabilities. It is also accepted that there must be a reasonable foundation on the evidence for the officer's assertion of having good cause to suspect although hearsay evidence may be sufficient for that purpose: Police v Anderson [1972] NZLR 233 and Police v Cooper [1975] 1
NZLR 216.
[11] I am satisfied that, applying the authorities discussed by Faire J in Murphy, Judge McAuslan was entitled to find that the enforcement officer, for the purposes of s 68(1)(b) f the Act, did have good cause to suspect Mr Housden had recently committed an offence by driving a motor vehicle. In addressing that point, Judge McAuslan said:13
[11] [Constable McLauchlan] therefore did give clear evidence of having good cause to suspect that the defendant had committed an offence pursuant to the Land Transport Act. He told the defendant that he believed that he
8 Ibid, s 68(1)(b); cf s 68(1)(a). Section 68 is set out at para [8] above.
9 Murphy v New Zealand Police [2014] NZHC 2835.
10 Francis v Police HC Auckland A114/01, 4 September 2001, Shackelford v Police [2007] DCR
744 (HC), Woodhouse v Police HC Wellington CRI-2010-435-2, 19 May 2010 and Wichman v
Police HC Wellington CRI-2009-485-37, 25 May 2009.
11 Francis v Police HC Auckland A114/01, 4 September 2001.
12 Ibid, at para [10].
13 New Zealand Police v Housden [2017] NZDC 13029, para [11]. As indicated earlier, the Judge preferred the constable’s evidence to that of Mr Housden when in conflict: see paras [39] and [40] set out at para [5] above.
was the driver and he was to undergo the breath screening test. He then described the device as a Dräeger 6510 but the defendant said he was not going to do it; he had not been driving so he does not have to do the test.
Appellate principles
[12] A first appeal against conviction is brought under s 229 of the Criminal Procedure Act 2011. Section 232 sets out the powers of the first appeal Court. Relevantly, it states:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
…
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
….
[13] It has been long accepted that an appellate court will place much weight on credibility findings made by a Judge who has had the advantage of seeing and hearing all material witnesses give evidence. In the context of a general appeal, this point was expressed by Elias CJ, for the Supreme Court, in Austin, Nichols & Co Inc
v Stichting Lodestar:14
14 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC), at para [13]
[13] The procedure prescribed for appeals by s 27 does not provide for full de novo rehearing of evidence. While “further material” can be brought forward under subs (8) either “in the manner prescribed or by special leave of the Court”, it is clearly envisaged that there will be rehearing on the record. That is usual, and is for example the manner of appeals under s 76 of the District Courts Act 1947. The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd and Rangatira Ltd v Commissioner of Inland Revenue.
(Emphasis added; footnotes omitted)
Analysis
[14] It is not necessary for me to consider whether or not Mr Housden had been driving the motor vehicle immediately before he was asked to accompany the officer. For present purposes, I accept Mr Housden’s assurance that he was not. For that reason, the question whether there is or is not CCTV footage to prove that Mr Housden was the driver is not relevant.
[15] 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. On that critical question, the Judge made a credibility finding in favour of the constable. Unless consistent with evidence given by Constable McLauchlan, the District Court Judge effectively rejected Mr
Housden’s evidence.15
[16] Having regard to the authorities on this topic, I am satisfied that it was open to the Judge to make those findings.16 They are not findings with which a first appeal Court should interfere. No miscarriage of justice has resulted from those
findings, for the purposes of s 232(2) and (4) of the Criminal Procedure Act.17
15 Ibid, at paras [39] and [40], set out at para [5] above.
16 See also Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at para [13], set out at para [13] above.
17 Set out at para [12] above.
[17] Similarly, there is no basis on which I can interfere with the conviction on the charge of refusing to permit a blood specimen to be taken. Mr Housden’s evidence was consistent with that of the constable on that point.18
Sentence appeal
[18] Mr Housden also appealed against the sentence imposed. There was no error in the way the Judge determined the appropriate sentence.19 In the absence of any error, the sentence appeal must fail.
Result
[19] For those reasons, the appeal against both conviction and sentence is dismissed.
P R Heath J
Delivered on 12 September 2017 at 12.00 midday
18 New Zealand Police v Housden [2017] NZDC 13029, at para [41], set out at para [5] above.
19 Criminal Procedure Act 2011, s 250(1)(a).