M v Police HC Whangarei CRI 2010-488-43

[2010] NZHC 1549

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2010-488-43

BETWEEN  M Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 September 2010

Counsel:         Mr M  , in person, Appellant

L E P Henderson and D Stevens for Respondent

Judgment:      2 September 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei
Copy to:

Mr M  , Appellant

M V NEW ZEALAND POLICE HC WHA CRI 2010-488-43 2 September 2010

[1]      Mr M   was charged with driving a motor vehicle on a State Highway with an excess breath alcohol concentration.  The level recorded by the appropriate breath testing machine was 834mgs of alcohol per litre of breath.

[2]      Mr M   entered no plea to the charge.  That was treated by the Court as a plea of not guilty.  A defended hearing took place before Judge Rota, in the District Court at Kaikohe, on 28 June 2010.

[3]      Mr M   was convicted and sentenced to 175 hours community work and was also disqualified from holding or obtaining a driver licence for a period of nine months.

[4]      Mr M   was prosecuted under the name “Ruri”.   During the course of the evidence before the District Court, Mr M   indicated that his whanau knew him simply as “M  ”.   That is the name by which he wishes to be known.   I use that name in this judgment.

[5]      Mr M   filed a notice of appeal in which he raised three issues.  The first related to sovereignty, the second to duress and the third to errors by the District Court Judge.   In addressing me today, Mr M   has, respectfully and honourably recognised my function as an appellate Judge and has raised the points he wishes me to consider.  I propose to do that now.

[6]      On the first question, I am bound by decisions of higher Curts that make it clear that all citizens of New Zealand are subject to the same legal regime.   That means all Courts are entitled to exercise powers in respect of those offences within their  respective  jurisdictions.     In  particular,   I  refer  to  Knowles  v  Police,[1]

R v Mitchell[2] and R v Harawira.[3]   For that reason, there was no error on the part of

Judge Rota in proceeding to hear and determine the charge.

[1] Knowles v Police CA146/98, 12 October 1998. 

[2] R v Mitchell CA68/04, 23 August 2004.

[3] R v Harawira CA180/05, 1 August 2005.

[7]      The second aspect relates to duress.  During the course of the hearing before the District Court, Mr M   expressed the view that he would be “under duress” when asked to make an election as to whether to give evidence on his own behalf. Mr M   qualified that comment by referring to his lack of knowledge of “the full process of what” he was going through.   The Judge then explained to him the purpose of the election and Mr M   agreed that he wished to give evidence.  There is nothing in that issue which would cause me to find that any error was made by the District Court Judge in proceeding to hear the balance of the evidence and to determine the charge.

[8]      In relation to the general complaint about the “error”, Mr M   has referred to two aspects of the evidence.   The first relates to the calibration of the relevant machine.   The second relates to documents that Mr M   has no recollection of having signed.  Both are resolved in favour of the prosecution, by findings of fact made by the District Court Judge; in particular, his acceptance of evidence given by the police officer concerned.

[9]      Mr M   had an opportunity to cross-examine on the suggestion that the machine gave a false reading and on questions relating to his signature.  It is clear that Mr M   was able to conduct cross-examination with some skill.  I can accept that Mr M   cannot remember signing the documents but the Judge had evidence on which he was entitled to rely when making determinations about those documents being signed.

[10]     In considering an appeal from a judgment of the District Court, I am required to consider whether any error has been committed by the Judge that would cause the conviction  to  be  regarded  as  unsafe.    Having  considered  the  material  from  the District Court hearing, I am not so satisfied.

[11]     The sentence imposed on Mr M   was well within the range available to the District Court Judge, having regard to the nature of the offending and the erratic driving that brought it to the attention of authorities.

[12]     For those reasons, the appeal is dismissed.

[13]     I wish to thank, however, Mr M   for the respectful way he has conducted himself before me.  He apologised for having exercised rights of appeal.  I made it clear to Mr M   that he had no cause to apologise.  Every citizen of this country is entitled to exercise rights of appeal and it is the function of appellate courts to

determine those according to law.

P R Heath J