McCloy v Police - [2014] NZHC 3129

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-94 [2014] NZHC 3129

BETWEEN
DAMEN MCCLOY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 December 2014

Appearances:

B Meyer for Appellant
D Elsmore for Respondent

Judgment:

9 December 2014

JUDGMENT OF MANDER J

[1] Damen McCloy pleaded guilty in the District Court to a charge of driving with excess breath alcohol. Mr McCloy has a previous conviction for the same offence, which was entered in May 2011.

[2] Judge Garland sentenced Mr McCloy to 150 hours community work and supervision for a period of 12 months. Pursuant to s 65 of the Land Transport Act
1998 (the Act), he was ordered to attend an assessment centre and was disqualified from holding or obtaining a driver’s licence until the Director of Land Transport removes the disqualification. Pursuant to s 65B of the Act, an order was made authorising him, at the end of his disqualification period, to apply for a zero alcohol licence. An order was also made confiscating Mr McCloy’s 1995 Toyota motor vehicle.

[3] Mr McCloy appeals his conviction, effectively to vacate his plea, on the basis that he did not fully appreciate the nature of the charge to which he was pleading
guilty. In the alternative, he appeals the confiscation order.

MCCLOY v NEW ZEALAND POLICE [2014] NZHC 3129 [9 December 2014]

[4] In support of his appeal, Mr McCloy filed an affidavit about what had occurred when he attended at the Christchurch District Court and was seen by the duty solicitor, Ms Maslinca Grant. Ms Grant was requested by the respondent to prepare an affidavit about the advice she gave Mr McCloy, and she has also made available the notes that she made at the time. Both Mr McCloy and Ms Grant gave oral evidence on the hearing of the appeal.

The facts that gave rise to the charge

[5] The circumstances of the offending are not disputed. On the night of 15

August 2014, Mr McCloy went to a Burger King restaurant, which he found was only open for the purposes of the drive-through operation. He attempted to order food at the drive-through counter but was refused service. He announced his intention to solve that problem by going home and getting his car. A member of staff considered Mr McCloy to be too intoxicated to drive and alerted the police, who were waiting for him when he returned in his vehicle. A subsequent evidential breath test showed that Mr McCloy had a breath alcohol level of 1002 micrograms of alcohol per litre of breath.

The circumstances of the entry of the guilty plea

[6] On the day Mr McCloy was summonsed to attend Court, he spoke to Ms Grant, in one of the interview rooms. He had brought with him a copy of the police disclosure. Mr McCloy’s evidence is that Ms Grant read the summary of facts and asked him if he wanted to deal with the matter today, or get it put off for…

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.

Continue reading McCloy v Police

Details

AGLC: McCloy v Police [2014] NZHC 3129
Case: [2014] NZHC 3129
Decision Date: 9 December 2014

CaseChat Overview and Summary

The case of McCloy v Police involved an appeal by Mr McCloy against his conviction and sentence for driving with excess breath alcohol. Mr McCloy, who had a previous conviction for the same offence, pleaded guilty to the charge in the District Court and was sentenced to 150 hours of community work, disqualification from holding a driver's licence, and confiscation of his vehicle. Mr McCloy appealed his conviction on the basis that he did not fully appreciate the nature of the charge to which he was pleading guilty, and also appealed the confiscation order. The High Court of New Zealand heard the appeal and considered whether there were exceptional circumstances to vacate the plea of guilty or whether the confiscation order resulted in undue hardship.

The court examined the evidence presented by Mr McCloy and the duty solicitor, Ms Grant, and found that Mr McCloy appreciated the constituent elements of the charge he faced and that his plea represented a formal admission of guilt. The court noted that Mr McCloy had the option to seek further legal advice but chose to plead guilty on the day of the hearing. The court concluded that there was no irregularity in the way Ms Grant assisted Mr McCloy and that his regret about the consequences of his plea did not provide sufficient grounds for a successful appeal. The court also found that the confiscation order did not result in undue hardship to any other person, as Mr McCloy was a healthy adult with employment and had not provided sufficient evidence to support his claim.

The court dismissed both Mr McCloy's appeal against conviction and sentence, upholding the original decision of the District Court.

Orders