Issac John Chadderton v The Queen - [2014] NZSC 180

IN THE SUPREME COURT OF NEW ZEALAND

SC 129/2014
[2014] NZSC 180

BETWEEN	ISSAC JOHN CHADDERTON Applicant
AND	THE QUEEN Respondent

Counsel:	A G Speed and D H P Schellenberg for Applicant P D Marshall for Respondent
Judgment:	8 December 2014

JUDGMENT OF WILLIAM YOUNG J

The application for deferral of the operation of the disqualification order
is dismissed.

____________________________________________________________________

REASONS

The applicant was found guilty of driving with an excess proportion of alcohol in his breath.[1] An appeal to the High Court was dismissed by Keane J[2] as was a further appeal to the Court of Appeal[3] (pursuant to leave granted by Keane J).[4] That judge also directed that the operation of the disqualification period be suspended pending determination of the appeal by the Court of Appeal. This is provided for, in rather awkward terms, by s 107(4) of the Land Transport Act 1998.[5] The suspension granted expired when the Court of Appeal dismissed the applicant’s appeal.
[1]Police v Chadderton DC Auckland CRI-2011-044-1152, 3 April 2013.
[2]Chadderton v New Zealand Police [2013] NZHC 2672.
[3]Chadderton v R [2014] NZCA 528.
[4]Chadderton v New Zealand Police [2013] NZHC 3433.
[5]I say “awkward” because the subsection is expressed to be applicable where an application is made “to the Court of Appeal for leave to appeal against a sentence of a District Court or the High Court that is or includes an order of disqualification …”. Here leave was granted by the High Court Judge and there was thus no need to apply to the Court of Appeal for leave. As well, the appeal was not against sentence but rather against conviction. The subsection does, however, also address the position which obtains once leave to appeal is granted. Although on a strict syntactical approach, this appears to contemplate a grant of leave by the Court of Appeal, I would construe it as also applying where leave to appeal has been granted by the High Court. As well, for the purposes of the subsection, I regard an appeal against conviction as necessarily encompassing a challenge to the resulting sentence. So I am of the view that there was jurisdiction for the order made by Keane J.
Having applied for leave to appeal against the Court of Appeal decision, the applicant seeks a further order suspending the operation of the disqualification order; this time, pending determination of his leave application. Such an order is not provided for by s 107 (as it does not authorise suspension of the operation of a disqualification order when a judgment of the Court of Appeal is challenged in the Supreme Court). Counsel for the applicant suggest that the order sought can be made under s 144B of the Summary Proceedings Act 1957. This provides:
144B Powers of Court of Appeal and Supreme Court on appeal
On an appeal under section 144 or section 144A to the Court of Appeal or the Supreme Court,—
(a)the court appealed to has the same power…

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: [2014] NZSC 180
Decision Date: 8 December 2014

CaseChat Overview and Summary

Issac John Chadderton applied for the Supreme Court to suspend the operation of a disqualification order imposed after his conviction for driving with an excess proportion of alcohol in his breath. The conviction was initially made by the District Court and subsequently upheld by the High Court and Court of Appeal. Chadderton sought to have the disqualification period suspended pending his application for leave to appeal to the Supreme Court. The legal issues before the Court were whether the Supreme Court had the jurisdiction to make an order suspending the operation of the disqualification order, and if so, under what authority such an order could be made. The Court held that the jurisdiction to suspend the disqualification period did not extend to the Supreme Court after the Court of Appeal had dismissed the appeal. The Court reasoned that section 107(4) of the Land Transport Act 1998, which provided for suspension of the disqualification period pending an appeal to the Court of Appeal, did not apply to a subsequent appeal to the Supreme Court. Further, the Court found that section 144B of the Summary Proceedings Act 1957 did not provide a basis for the Supreme Court to extend the suspension order. The Court concluded that it did not have jurisdiction to make the order sought by Chadderton.

The Supreme Court dismissed the application for deferral of the operation of the disqualification order. The Court held that it did not have jurisdiction to make the order sought by Chadderton under section 144B of the Summary Proceedings Act 1957 or otherwise. The Court noted that the suspension of the disqualification period was provided for by section 107(4) of the Land Transport Act 1998, but only in relation to appeals to the Court of Appeal, not to the Supreme Court. As such, the Court was not able to extend the suspension order beyond the dismissal of the appeal by the Court of Appeal. The Court's decision was consistent with the reasoning in Bascik v Ministry of Transport, which held that the Supreme Court did not have jurisdiction to suspend the operation of a disqualification order after the Court of Appeal had dismissed an appeal.

Orders