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Mitchell v Police

Mitchell v Police

Case [2023] NZSC 104 11 August 2023

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 116/2021
[2023] NZSC 104

BETWEEN	CHEYMAN LEE MITCHELL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	10 May 2022
Court:	Winkelmann CJ, O’Regan, Ellen France, Williams and Kós JJ
Counsel:	K H Cook, P C McDonnell and S J Bird for Appellant F R J Sinclair and Z A Fuhr for Respondent
Judgment:	11 August 2023

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

Para No
Winkelmann CJ, O’Regan, Williams and Kós JJ	[1]
Ellen France J	[71]

WINKELMANN CJ, O’REGAN, WILLIAMS AND KÓS JJ
(Given by Kós J)

Table of Contents

Para No
Background	[3]
Essential statutory context	[9]
Lower Court judgments	[14]
District Court judgment	[14]
High Court judgment	[17]
Court of Appeal judgment	[20]
Submissions	[25]
Mr Mitchell’s submissions	[25]
Police submissions	[31]
Issue	[35]
How we got to s 46(1)(b)	[37]
Legislative redevelopment of the special pleas	[51]
Does s 46(1) preclude Mr Mitchell’s conviction on the second charge?	[53]
Our assessment	[60]
Result	[70]

It is a fundamental principle of law that a person not be tried or punished again for an offence on which they have been acquitted or convicted, a right now affirmed in s 26(2) of the New Zealand Bill of Rights Act 1990. Section 46(1) of the Criminal Procedure Act 2011 (the CPA) provides a special plea of “previous conviction” where a defendant has been convicted of the same offence as the offence currently charged, arising from the same facts, or any other offence arising from those facts. Section 47 of the CPA creates a further special plea—of previous acquittal—but it is s 46 we are concerned with in this appeal.
The question here is whether that plea applies to Mr Mitchell. His failure of an evidential breath test gave rise to two charges: driving with a breath alcohol level exceeding 400 micrograms per litre of breath, and driving contrary to a zero alcohol licence. He pleaded guilty to the first charge. Does s 46(1) now apply to the second?

Background

On 18 December 2017, Mr Mitchell received his second conviction for driving with a breath alcohol level over 400 micrograms per litre of breath.[1] He was disqualified from driving for seven months, fined $400 and an order was made for the confiscation of his vehicle. After the disqualification period lapsed, Mr Mitchell obtained a zero alcohol licence, which permitted him to drive on the condition that neither his breath nor his blood contained alcohol.
[1]His first such conviction occurred on 17 June 2014.
On the evening of 18 September 2019, Mr Mitchell consumed alcohol at a friend’s address. He decided to drive home, and at 2.47 am the next morning he was pulled over by the police on Brougham Street, Christchurch. An evidential breath test showed a sample of his breath contained 649 micrograms of alcohol per litre of breath.
On 3 November 2019, Mr Mitchell was charged under ss 32(1)(b) and 56(1) of…

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 Mitchell v Police

Details

AGLC: Mitchell v Police [2023] NZSC 104
Case: [2023] NZSC 104
Decision Date: 11 August 2023

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mitchell, the appellant, appealed against the decision of the Court of Appeal, which had dismissed his appeal against his conviction and sentence. The appellant was convicted under section 56(1) of the Land Transport Act 1998 for driving with a breath alcohol level exceeding 400 micrograms per litre of breath and under section 32(1)(b) of the same Act for driving contrary to a zero alcohol licence. The appellant pleaded guilty to the first charge but a special plea of “previous conviction” was entered on his behalf on the second charge, pursuant to section 46(1)(b) of the Criminal Procedure Act 2011 (the CPA). The District Court dismissed the second charge, but the High Court and the Court of Appeal set aside the dismissal and reinstated the conviction. The Supreme Court dismissed the appeal. The Court held that there was sufficient difference between the common punishable acts of the two charges so that the special pleas were clearly displaced, despite the fact that the acts occurred simultaneously. The two charges were substantially different in character from each other and it was not unlawful for the appellant to be convicted of both.

Orders