Mail v Police

[2012] NZHC 3049

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-68 [2012] NZHC 3049

ELISE ELIZABETH MAIL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 and 15 November 2012

Counsel:         L Walkington for Appellant

R Annandale for Respondent

Judgment:      15 November 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

ELISE ELIZABETH MAIL V NEW ZEALAND POLICE HC HAM CRI-2012-419-68 [15 November 2012]

[1]      Ms Mail pleaded guilty in the District Court to charges whilst disqualified (aggravated),[1]  and driving a motor vehicle whilst the proportion of alcohol in her breath exceeded 400 micrograms of alcohol per litre of breath.[2]

[1] Land Transport Act 1998, s 32(4).

[2] Ibid, s 56(1).

[2]      On 25 September 2012, Judge Cocurullo convicted Ms Mail and sentenced her to concurrent sentences of 18 months supervision with special conditions.[3]    He also disqualified her from holding or obtaining a driver’s licence for a period of one year and one day from that date.  Ms Mail appeals to this Court solely against the Judge’s decision to disqualify her from driving.

Facts

[3] Police v Mail DC Hamilton CRI-2012-019-003194, 25 September 2012.

[3]      On 29 August 2011, Ms Mail was disqualified from holding or obtaining a driving licence for a period of one year and seven days commencing on that date. At approximately 3.15 am on Sunday 12 May 2012, she was driving a motor vehicle along Victoria Street, Hamilton.  She arrived at a police checkpoint, and breath test procedures were carried out. These returned a positive reading of 538 micrograms of alcohol per litre of breath.   When Ms Mail arrived at the checkpoint, she had a female passenger in her vehicle.  She told the police that the passenger was “more of a mess than her”, and that the passenger was also disqualified from driving.

[4]      This is not the first occasion on which Ms Mail has been convicted of driving whilst disqualified, or driving whilst the holder of a revoked or expired licence.  She has one previous conviction for driving whilst disqualified, and two previous convictions for driving whilst her licence was suspended or revoked.

The hearing in the District Court

[5]      A period of disqualification is ordinarily mandatory on the charges to which

Ms Mail had pleaded guilty.[4]  At the hearing in the District Court, however, Ms Mail

sought to persuade the Judge that he should exercise his discretion under s 81 of the

Land Transport Act 1998 (“the Act”) and not disqualify her from driving.

[4] Land Transport Act 1998, s 32(4)(b) and s 56(3)(b).

[6]      Before a court can exercise its discretion under s 81, it must find there are “special reasons relating to the offence” that justify taking that course.  Ms Mail did not place affidavit evidence before the Judge, and instead relied on oral submissions by her counsel.  In addition, the Judge had the benefit of a report from a psychologist that had been prepared pursuant to s 38(2)(a) of the Criminal Procedure (Mentally Impaired) Persons Act 2003.

[7]      The  report  described  in  considerable  detail  the  very real  difficulties  that confront Ms Mail on an everyday basis because of the fact that she is afflicted by a particularly  severe  form  of  obsessive  compulsive  disorder.    This  has  affected virtually every aspect of Ms Mail’s life.   It has even resulted in her not having physical contact with her parents for approximately four years, even though she speaks to them on an almost daily basis.

[8]      The Judge was clearly sympathetic to the issues Ms Mail faces.   He could not, however, see any link between the disorder and the events that gave rise to the offending.  For that reason the Judge felt obliged to impose the mandatory periods of disqualification.

The evidence on appeal

[9]      On appeal, Ms Mail has sought to place further evidence before me.  These comprise sworn affidavits by her father and by the female passenger in the car when she arrived at the checkpoint.  These show that, on the afternoon of the offending, Ms Mail’s father had contacted her to advise  her that he and her mother were separating.

[10]     The affidavit from Ms Mail’s friend confirms the difficulties confronting Ms Mail as a result of her disorder.  She confirms that in the early hours of the morning of 12 May, she was at a nightclub in Hamilton.  She recalls receiving text messages from Ms Mail, saying that she was not well.   She is unable now to recall the full

detail of those text messages because she was, in her own words, “pretty drunk that night”.  She can, however, recall Ms Mail picking her up and later being stopped by the police.

[11]     Counsel also presented an unsworn affidavit by Ms Mail.   This went into some detail regarding her disorder and the background to the events that occurred in the early hours of 12 May 2012.  At the commencement of the hearing, counsel for Ms Mail advised me that Ms Mail’s health issues had prevented her from leaving her address to swear the affidavit.  Counsel advised me that she had spoken to Ms Mail, and that Ms Mail confirmed the correctness of the matters contained in the affidavit. For that reason counsel asked me to receive the affidavit, even though it had not been sworn.

[12]     This  presented  an  immediate  problem,  because  counsel  for  the  police objected to the affidavit being received on an unsworn basis.  In addition, he advised me that he wished to cross-examine Ms Mail regarding some of the issues raised in the affidavit.  For that reason I adjourned the appeal part-heard to give Ms Mail an opportunity to swear the affidavit, and to be present at Court so that she could be cross-examined by counsel for the police.

[13]     When the hearing resumed today, however, counsel for Ms Mail advised me that her client still feels unable to leave her address to swear the affidavit, and she does not feel she can come to Court either.

[14]     If a litigant wishes to place evidence before a Court, it must be verified by oath or affirmation.  In addition, a deponent must, when requested to do so, attend at Court for cross-examination.   Given the circumstances that have arisen, and with some regret, I have no option but to place the affidavit to one side.

Decision

[15]     I readily accept that the personal characteristics of an offender may well influence the events leading up to the commission of an offence.  They may, in fact, explain and/or cause the offending.  In those circumstances the characteristics of the

offender are part and parcel of the offending, and can properly be taken into account for the purposes of s 81 of the Act.[5]

[5] See, albeit in a different context, the comments in Basile v Atwill [1995] 2 NZLR 537 (CA) at 539.

[16]     In the present case, however, the only evidence before the Court is that Ms Mail suffers from a severe form of obsessive compulsive disorder.  On the evening of the offending, her father advised her that he and her mother were separating.  One can infer that this naturally upset Ms Mail, but matters cannot be taken further than that.  It is also clear that Ms Mail consumed alcohol after receiving the news.  Some hours later, she elected to drive into the city to pick up her associate after engaging in text message communications with her.  It was at that point that she was stopped by the police and found to be driving whilst under the influence of alcohol.

[17]     Whilst I have sympathy for the difficulties from which Ms Mail suffers, I do not consider the evidence sufficient to amount to special reasons for the purposes of s 81.   There is no apparent link between Ms Mail’s unfortunate personal characteristics and the fact that she drove whilst disqualified and in an intoxicated state in the early hours of 12 May 2012.

[18]     For those reasons I have come to the conclusion that the Judge was correct. He had no option, given the material before him, but to decline  to exercise its discretion under s 81 in Ms Mail’s favour.  Even with the further evidence adduced on appeal, I find myself in the same position.

Result

[19]     I have no option but to dismiss the appeal.

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

L Walkington. Thackeray Chambers, Hamilton