Mitchell v Police
[2021] NZCA 417
•31 August 2021 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA325/2020 [2021] NZCA 417 |
| BETWEEN | CHEYMAN LEE MITCHELL |
| AND | NEW ZEALAND POLICE |
| Hearing: | 10 March 2021 |
Court: | Brown, Clifford and Goddard JJ |
Counsel: | K H Cook and P M D McDonnell for Appellant |
Judgment: | 31 August 2021 at 10.00 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal is granted.
BThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Introduction
This appeal raises the question whether a person may be convicted of multiple charges in respect of the same episode of driving. Mr Mitchell, who held a zero alcohol licence, was found driving with a breath alcohol level of 649 micrograms per litre of breath. He was charged under the Land Transport Act 1998 not only with driving contrary to a zero alcohol licence (s 32(1)(b)) but also driving with excess breath alcohol (s 56(1)).
In the District Court he pleaded guilty to the excess breath alcohol charge. In respect of the zero alcohol licence charge he entered a plea of previous conviction under s 46(1) of the Criminal Procedure Act 2011 (the CPA). The District Court Judge accepted the special plea and dismissed the zero alcohol licence charge, reasoning that the two offences arose “from the same facts”.[1]
[1]Police v Mitchell [2020] NZDC 1999 [District Court judgment].
The High Court reached the opposite conclusion and allowed an appeal.[2] The Court concluded that there was an appreciably different focus in the two driving offences, one being concerned with the prohibition of driving with excess blood alcohol and the second involving a breach of the obligation to drive within the requirements of a licence.[3] Mr Mitchell now seeks leave for a second appeal.
[2]Police v Mitchell [2020] NZHC 1143 [High Court judgment].
[3]At [88].
The issue on Mr Mitchell’s appeal is which is the correct analysis? As the issue is of importance both for the parties and more generally, we grant leave to appeal.
Statutory context
Land Transport Act provisions
Section 56(1) of the Land Transport Act to which the appellant pleaded guilty relevantly states:
A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.
A zero alcohol licence is defined in s 2(1) in this way:
zero alcohol licence means a licence that—
(a)is issued to a person who is authorised to obtain the licence by a court order referred to in section 65B(1); and
(b)authorises the person to drive on the condition that neither the person’s breath nor the person’s blood contains alcohol.
Section 5 requires drivers to be licensed. Section 5(1)(c) provides:
(1)A person may not drive a motor vehicle on a road—
…
(3)if the person is disqualified from holding or obtaining a driver licence, or the person’s driver licence is suspended or has been revoked, or the driving is contrary to an alcohol interlock licence, a zero alcohol licence, or a limited licence.
The offence of contravening s 5(1)(c) is then found in s 32 of the Act.
A further provision touched on in the course of argument is s 57AA which materially states:
57AAContravention of specified breath or blood alcohol limit by holder of alcohol interlock licence or zero alcohol licence
(1)A person who holds an alcohol interlock licence or a zero alcohol licence commits an offence if the person drives or attempts to drive a motor vehicle on a road while the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, contains alcohol but the proportion of alcohol does not exceed 250 micrograms of alcohol per litre of breath.
…
(4)A person who holds an alcohol interlock licence or a zero alcohol licence commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 250 micrograms of alcohol per litre of breath.
Double jeopardy
The issue on this appeal concerns a fundamental principle of the criminal law that a person should not be punished twice for the same wrong (non bis in idem). This principle is codified in s 26(2) of the New Zealand Bill of Rights Act 1990, which states:
(2)No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.
It is further articulated in s 10(4) of the Crimes Act 1961 which states:
(4) No one is liable to be punished twice in respect of the same offence.
The common law pleas of previous conviction (autrefois convict) and previous acquittal (autrefois acquit) were narrow in scope, only available to a defendant who was charged with the very same offence of which the defendant had previously been convicted or acquitted.[4] Those pleas were codified in New Zealand in the Crimes Act:
358 Pleas of previous acquittal and conviction
(1)On the trial of an issue on a plea of previous acquittal or conviction to any count, if it appears that the matter on which the accused was formerly charged is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made that might then have been made, have been convicted of all the offences of which he may be convicted on any count to which that plea is pleaded, the Court shall give judgment that he be discharged from that count.
…
(Emphasis added.)
[4]See Connelly v Director of Public Prosecutions [1964] AC 1254 (HL) at 1339–1340; and R v Beedie [1998] QB 356 (CA) at 360–361.
The test whether the previous charge was “the same in whole or in part” as the new charge was also interpreted narrowly. While it did not have to be the same offence, the Court still focused on comparing all the legal elements of the previous and new charges.[5] For example, in R v Brightwell the new charge of assault with a shotgun arose from the same facts as the original charge of presenting a shotgun at the victim. Yet this Court found, having analysed the elements of the two offences, that the plea of previous conviction was not available.[6]
[5]Rangitonga v Parker [2016] NZCA 166, [2018] 2 NZLR 796 at [29].
[6]R v Brightwell [1995] 2 NZLR 435 (CA) at 438–439.
A new test was introduced in 2011 with ss 46 and 47 of the CPA. The explanatory note in the Criminal Procedure (Reform and Modernisation) Bill suggests an intentional widening of the scope for these special pleas:[7]
The test for when a plea of previous conviction, previous acquittal, or pardon is available differs from that under the existing law. The new test (see clauses 43 and 44) is intended to bring greater certainty as to the availability of the special pleas.
[7]Criminal Procedure (Reform and Modernisation) Bill 2010 (243–1) (explanatory note) at 25.
The focus of this appeal is s 46, which provides:
46 Previous conviction
(1)If a plea of previous conviction is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been convicted of—
(a)the same offence as the offence currently charged, arising from the same facts; or
(b) any other offence arising from those facts.
(2) Subsection (1) does not apply if—
(a)the defendant was convicted of an offence and is currently charged with a more serious offence arising from the same facts; and
(b)the court is satisfied that the evidence of the more serious offence was not readily available at the time the charging document for the previous offence was filed.
The new test allows a plea of previous conviction for another offence “arising from the same facts”. Section 47 addresses the plea of previous acquittal and uses the same language. In Rangitonga v Parker, which concerned s 47, this Court accepted that the reference to offences arising from the same facts is intended to apply to cases where there is a common punishable act central to both the previous and new charge.[8] The Court explained:
The new section focuses on the substance of the facts giving rise to the previous and new charges rather than a fine-grained comparison of each element of the charge.
[8]Rangitonga v Parker, above n 5, at [41].
The Court considered that by focussing on the substance of the facts giving rise to the previous and new charges an unduly technical approach to the availability of the special plea would be avoided. It observed that in most cases it ought to be straightforward to identify the central punishable acts or omissions by reference to the central elements of the offences.[9] Subsequently in Filitonga v R this Court held that the analysis in Rangitonga v Parker applied equally to s 46.[10]
The judgments below
District Court
[9]At [43].
[10]Filitonga v R [2017] NZCA 492, [2017] NZAR 1667 at [16].
On 28 November 2019 Mr Mitchell initially attempted to plead guilty to both the s 56 charge and the s 32 charge. However Judge Neave invited him to plead guilty to only the former charge and then enter a plea of previous conviction to the latter. The issue whether that plea was available was subsequently heard by Judge O’Driscoll who ruled that the special plea of previous conviction pursuant to s 46 of the CPA applied to the s 32 charge and dismissed it accordingly.
The Judge reviewed the conflicting District Court decisions involving such charges under the Land Transport Act. This included in particular Police v Smith where Judge Sainsbury concluded that the facts giving rise to each offence were significantly different reflecting the different purposes and mischief of the respective sections,[11] and Police v Tindall where Judge Neave came to the different conclusion that the essential facts of the two offences were virtually identical, stating:[12]
The summaries of facts make no distinction between the two offences in terms of what is described as the actions of the defendant. To my mind, there is absolutely no difference between the acts of the defendant which give rise to the offence in each case. The only difference essentially relates to matters of status. Or perhaps to put it another way, the only difference relates to the amount of alcohol found to be in the defendant’s blood. In respect of one, any alcohol will suffice. In respect of the other, it must be over a particular limit. However, none of those factors relate to any actions on the part of the defendant.
[11]Police v Smith [2018] NZDC 9057. The charges were listed as s 56(1) and s 56AA(4) but the Judge’s reasoning compared ss 56 and 32.
[12]Police v Tindall [2018] NZDC 22252 at [27].
While expressing the view that there are clear policy reasons for finding that the fact that a defendant has obtained a zero alcohol licence is a fact that gives rise to the s 32 offence but not to the s 56 offence, such that they arise from different facts, the Judge considered that that was an issue for the High Court to consider.[13] The Judge concluded that the core punishable act for both ss 32 and 56 is that a defendant drove a vehicle on a road with alcohol in his system.[14] Hence he found the plea of previous conviction applied to the s 32 charge which he dismissed at Mr Mitchell’s next appearance.
High Court
[13]District Court judgment, above n 1, at [109].
[14]At [107].
The contrary conclusion was reached by Osborne J. The Judge highlighted three scenarios:[15]
(a)In Rangitonga the core punishable acts — sexual intercourse in relation to an alleged rape and punching and strangling in relation to an alleged injuring — were significantly different, although the issue of lack of consent was common to both charges.
(b)In Filitonga, by contrast, there was an identifiable common punishable act in relation to both the charges in that the defendant had unprotected sex, while knowingly HIV positive, being reckless as to the consequences. The Judge drew attention to the fact that this Court’s analysis established that the focus is not solely on the “act” itself, as the overarching Rangitonga test might suggest, but takes into account other core features of the offending, namely the defendant’s knowledge of his condition and his recklessness as to its consequences.
(c)Finally, this Court in O’Reilly v Chief Executive of the Department of Corrections adopted the analogy of a person driving a car which does not have a warrant of fitness and is not registered.[16] While the central fact of driving may be common, it did not make the situation one where there is a common punishable act. Rather the omission in each case is entirely different, one relating to a warrant of fitness and one relating to registration.
[15]High Court judgment, above n 2, at [78]–[80].
[16]O’Reilly v Chief Executive of the Department of Corrections [2018] NZCA 313, [2018] NZAR 1327 at [18].
The Judge then observed:
[81] The analogy identified by the Court of Appeal in O’Reilly serves to emphasise that the concept of “a common punishable act central to both charges”, adopted in Rangitonga, is a convenient summation, rather than one which requires a single focus on “acts” alone. What the provisions themselves require is an examination as to whether the “facts” are the same.
Applying that test Osborne J was satisfied that the two offences Mr Mitchell faced did not arise from the same facts as required for a special plea. With reference to earlier decisions he said:
[83] The analysis which has led to the acceptance of a special plea in a number of cases, including Tindall and the present case, has understandably identified as common features of the defendants’ offending that there has been driving, it has been on a road, and the defendant is affected by an amount of alcohol. But such an analysis is to ignore the very elements which make the conduct punishable. In other words, there has been a successful identification of common core facts but not an identification of common core punishable acts.
Analysis
Central punishable acts/omissions
Mr Cook, counsel for Mr Mitchell, contended that this appeal epitomises the rationale behind s 46 in that the charges have arisen out of the same set of facts whereby Mr Mitchell drove a motor vehicle with excess breath alcohol. He submitted that Mr Mitchell could not have been found guilty of driving with excess breath alcohol contrary to s 56 without also violating s 32 on account of his licence status. Thus the actus reus of both charges was the same. There was no further series of events.
He emphasised that driving with excess breath alcohol, which he contended was the punishable act, is central to both provisions which require a certain level of alcohol per litre of breath. While the breath alcohol level required for the two charges are different (for s 32 anything more than zero will suffice), the method for proving the charges relies on the same fact. The breath alcohol test is the core fact and the only evidence which is being relied on to prove both charges. The punishment of Mr Mitchell twice through the two separate charges was said to be the mischief which the s 46 special plea is intended to remedy.
Mr Cook submitted that Osborne J erred in placing reliance on Rangitonga and O’Reilly for the reason that in both cases the charges arose out of different facts. He advocated for the approach in Tindall which if adopted would support the conclusion that s 46 applied to Mr Mitchell’s situation.
That criticism of the High Court judgment is misplaced. As the Courts-Martial Appeal Court remarked in R v Arnold:[17]
37 There is a difference (and sometimes a great deal of difference) between (i) two charges being founded on the same facts and (ii) two charges sharing some facts in common.
We agree with Mr Sinclair, counsel for the respondent, that if different punishable acts merely engage a common fact, the offences do not arise from the “same facts” as prescribed in s 46(1). To say that offences share a common fact or facts is not the same thing as saying they involve “common punishable acts”.
[17]R v Arnold [2008] EWCA Crim 1034, [2008] 1 WLR 2881.
This point was developed by Osborne J in his identification of the different key elements in the two offences in question: the excessive alcohol level in the s 56 charge, and for the s 32 charge the possession of a zero alcohol licence (without which the act of driving on the road with merely some level of breath alcohol would not have been punishable).[18] As the Judge explained:
[86] There is a suggestion in at least some of the District Court judgments that to draw the distinction between the two offences which I have identified is to undertake the “fine-grained comparison of each element of the charges” which the Court of Appeal in Rangitonga rejected. But it is not. The excessive level of breath alcohol and the breach of the licence entitlements are respectively at the core of the two charges. The Court of Appeal’s driving analogy in O’Reilly serves to emphasise that the status of a vehicle – whether it has a warrant of fitness or is registered – is an aspect of the core punishable facts. So, too, on my analysis, is the licensing status of the driver when the offence charged is driving in breach of a licence condition.
[18]High Court judgment, above n 2, at [84]–[85].
Given the confusion reflected in the several authorities to which we were referred, it is useful to compare the Venn diagrams contained in Mr Sinclair’s submissions. The first depicts the analogy explored in O’Reilly where the act of driving is common but there is no other common fact for the two offences associated with that act:[19]
[19]At [20(c)] above.
The second diagram illustrates Osborne J’s analogy of a publican selling alcohol to a minor on Good Friday which would contravene the prohibitions in the Sale and Supply of Alcohol Act 2012 of selling or supplying alcohol on licensed premises on certain days and selling or supplying alcohol to a person who is under the purchase age:[20]
[20]High Court judgment, above n 2, at [87].
The circumstances of the instant appeal were depicted in this manner:
We agree with Mr Sinclair’s submission that where a person is both subject to a zero licence and exceeds the breath/blood alcohol level in s 56, the presence of an overlapping fact — driving with alcohol — does not change the O’Reilly conclusion. No particular level is required in one parcel of conduct whereas a person’s licence status forms no part of the other parcel of conduct. Neither parcel subsumes the other.
Responding to Mr Cook’s submission concerning the method of proof of the charges[21] Mr Sinclair submitted, and we agree, that the manner of proof of a common fact does not affect the distinction between the core punishable acts. Hence the proposition in cases such as Police v Ruki that the breath alcohol level is essential to both offences[22] serves to conflate the proof of the fact with the function that the fact plays.
[21]At [23] above.
[22]Police v Ruki [2019] NZDC 24589 at [9].
Mr Sinclair went on to explain that there is a rational justification for convictions on both offences having regard to the structure of the Land Transport Act and its hierarchy of penalties. Section 32 is in pt 5 which is concerned with offences relating to driving (other than alcohol related offences) whereas s 56 is in pt 6 which concerns driving offences involving drink or drugs. In both provisions there is a lower set of penalties when a person is convicted for a first or second offence and a higher set of penalties for a third or subsequent offence.[23]
[23]In both sections the third or subsequent offence carries a penalty of imprisonment for a maximum of two years, or a maximum fine of $6,000, and a minimum disqualification of one year: Land Transport Act 1998, ss 32(4) and 56(4).
Mr Sinclair submitted that if dual convictions are not recorded in respect of conduct constituting offences under both ss 32 and 56 there is a potential for distortion, a point he illustrated by reference to two scenarios. In the first scenario a person’s offence history involves a breach of a zero alcohol licence and two other breaches of s 32. This would cause the higher penalty provision to be engaged. However if a special plea is allowed for the zero alcohol offence (on account of a conviction for excess breath alcohol under s 56) the higher penalty would not be accessible, as he submitted it should be. The offence history would only record two breaches of s 32(1):
s 32 s 56
Breach of zero licenceEBA
e.g. Driving while disqualified
e.g. Driving while disqualified
In the alternative scenario, where a breach of a zero alcohol licence becomes the basis for a special plea displacing a s 56 conviction, the offence history can be depicted in this way:
s 32 s 56
Breach of zero licence
EBAEBA
EBA
He contended that if a person can, by entering a special plea, in effect strike out a conviction from a column in which a conviction should be recorded, the intended operation of the legislation is disrupted.
Mr Sinclair further submitted that permitting an election between the two offences would undermine Hughes v R where cumulative sentences were imposed for driving while disqualified and driving with excess breath alcohol in relation to the same incident.[24] This Court confirmed that the two offences were “different in kind”, one being concerned with road safety and the other with the enforcement of Court orders, and they required the prosecution to prove different facts.[25]
[24]Hughes v R [2012] NZCA 388.
[25]At [22] and [24].
We agree that the rationale adopted in Hughes is also applicable on the present appeal. Mr Mitchell imperilled the safety of other road users by driving with excess breath alcohol and he defied a Court-imposed licence condition. Dual convictions not only fairly capture, but also appropriately label, his offending. Consequently we do not favour the analysis which seems to have found favour with the Supreme Court of South Australia in two authorities advanced by Mr Cook, Arthur v Police[26] and Jones v Police.[27]
[26]Arthur v Police [2008] SASC 213, (2008) 101 SASR 529 at [42].
[27]Jones v Police [2019] SASC 36, (2019) 135 SASR 255 at [51].
For these reasons we endorse the conclusion of Osborne J and we dismiss the appeal. However, having had the benefit of thorough submissions from both counsel and given the topicality of the issue, we will briefly comment on some related themes referred to in argument.
Other matters
Concurrent offences under the Land Transport Act
Section 2(1) of the Land Transport Act contains a definition of “concurrent offence”:[28]
concurrent offence means an offence—
(a)that is not a qualifying offence; and
(b)that occurred as part of the same series of events as the facts that gave rise to the person’s conviction for a qualifying offence; and
(c)for which the offender may or must be disqualified from holding or obtaining a driver licence under this Act or under section 124 of the Sentencing Act 2002
A qualifying offence is one described in s 65AB(1). It includes ss 56(1) and (2) and 57AA.
[28]Introduced by s 5 of the Land Transport Amendment Act 2017.
Mr Cook submitted that the concept of concurrent offence recognises that one offence may arise from the “same series of events as the facts that give rise to another”. He argued that the present circumstances should not be construed as amounting to concurrent offences because the charges did not arise from the same series of events. Rather they arose out of the same set of facts.
Mr Sinclair responded that those definitions neither created nor confined the possibility of concurrent offences but simply recognised that one offence may arise in the manner described at (b) of the definition. The 2017 amendment clarified what is to happen in the circumstance of a particular combination of convictions. As he explained, when one of the alcohol offences listed in s 65AB(1) is committed in an aggravated form, an alcohol interlock sentence becomes mandatory under s 65AC. When there is also a concurrent offence, there is a need to explain how the two sentences mesh together.
Thus for example, if a person commits one of the licensing offences under s 32(1) the usual period of mandatory disqualification does not apply if that offence is concurrent with a qualifying offence. There would instead be the mandatory interlock sentence for the qualifying offence and s 65AH explains how other aspects of the two sentences should be assessed. However Mr Sinclair made the point that, even within this narrow range of situations, a conviction for breach of a zero alcohol licence may arise concurrently with a qualifying offence: for example, by a combination of s 32(1)(b) with the offence of driving while incapable of having proper control in s 58(1).
The implications of s 57AA
Mr Cook submitted that Parliament’s enactment of s 57AA in 2012[29] indicated that in situations where a person holds a zero alcohol licence and has exceeded 250 micrograms, thus breaching the terms of their licence, only one charge is necessary. He pointed out that s 57AA(4) provides an aggravating higher penalty for excessive breath or blood alcohol results exceeding 250 milligrams of alcohol per litre of breath or further pursuant to s 57AA(5) 50 milligrams of alcohol per 100 millilitres of blood. Hence he contended that, as s 57AA achieves the same mischief as ss 32 and 56, it indicates not only that concurrent offences are not appropriate in situations such as the present but suggests that a single charge is sufficient to reflect the criminality of the conduct.
[29]Land Transport (Road Safety and Other Matters) Amendment Act 2011, s 26.
Mr Cook drew attention to the judgment of Van Bohemen J in Ashworth v Police[30] which was subsequent to Osborne J’s decision in the present case. Mr Ashworth, who like Mr Mitchell was subject to a zero alcohol licence, was stopped by police and returned a breath test of 600 micrograms of alcohol per litre of breath. He was charged under ss 56(1) and 57AA(4). While expressing agreement with the conclusion of Osborne J, the Judge ruled that convictions for both the charges against Mr Ashworth offended the principle of double jeopardy in s 10(4) of the Crimes Act and a special plea was available.[31] Mr Cook supported the conclusion in Ashworth but submitted Van Bohemen J’s perception of Osborne J’s decision was erroneous.
[30]Ashworth v Police [2020] NZHC 1587.
[31]At [37].
While recognising that the legislative history of s 57AA contains no explanation of how it relates to the existing offence regime, Mr Sinclair submitted that there continue to be valid reasons, again relating to available penalties, for invoking the existing licence and excess breath alcohol offences.
He explained that if a zero licence holder returns a reading of below 250 micrograms per litre there are differences in penalty. Charging under s 32 potentially engages a higher fine and ensures a disqualification of at least six months.[32] Further, the availability of the higher penalties for third and subsequent offences under ss 32 and 56 depends on there being at least three convictions for offences “against” s 32(1) or s 56(1) and (2). On the face of it that required convictions for offences laid under those sections directly.
[32]Although the mandatory disqualification does not apply if an order is made under s 65 or an alcohol interlock sentence is ordered under s 65AC(1).
On the basis of that interpretation the same recording problems earlier referred to[33] could arise. Thus if convictions under s 57AA and ss 32/56 are mutually exclusive alternatives, a s 57AA conviction has, for recording purposes, much the same effect as allowing a special plea. Conduct that would otherwise register as offences under both ss 32 and 56 would not be recognised. By way of example, if a person has two existing excess breath alcohol convictions, Mr Sinclair argued it would make little sense to charge a third excess breath alcohol (combined with a zero licence breach) under s 57AA. The more logical course would be to charge the aggravated offence under s 56 and the licence breach under s 32. Mr Sinclair observed that such a course might have been followed in Ashworth.
[33]At [33]–[34].
In our view the most that can be said is that several provisions now co-exist in the legislation, and the choice of charges necessarily remains a matter of discretion for the prosecutor. However, for the reasons advanced by Mr Sinclair we recognise that it may not always be appropriate for excess breath alcohol in combination with breach of zero licence to be charged simply under s 57AA.
Result
The application for leave to appeal is granted.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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