Mitchell v Police - [2021] NZCA 417

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA325/2020
[2021] NZCA 417

BETWEEN	CHEYMAN LEE MITCHELL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	10 March 2021
Court:	Brown, Clifford and Goddard JJ
Counsel:	K H Cook and P M D McDonnell for Appellant F R J Sinclair for Respondent
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…

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 [2021] NZCA 417
Case: [2021] NZCA 417
Decision Date: 31 August 2021 at 10.00 am

CaseChat Overview and Summary

The case of Mitchell v Police before the Court of Appeal of New Zealand involves the issue of whether a person can 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 but also driving with excess breath alcohol. The District Court accepted the special plea of previous conviction and dismissed the zero alcohol licence charge. However, the High Court reversed this decision and allowed an appeal. Mr Mitchell now seeks leave for a second appeal.

The appeal raises the question of whether the correct analysis was applied by the High Court in concluding that there was an appreciably different focus in the two driving offences. The Court granted leave to appeal due to the importance of the issue for the parties and more generally. The appeal concerns the fundamental principle of the criminal law that a person should not be punished twice for the same wrong (non bis in idem), which is codified in the New Zealand Bill of Rights Act 1990 and the Crimes Act 1961. The Court considered the statutory context of the Land Transport Act provisions and the common law principles of double jeopardy. The Court also examined the new test introduced in 2011 with sections 46 and 47 of the Criminal Procedure Act, which provides for a plea of previous conviction for another offence "arising from the same facts". The Court concluded that the two offences Mr Mitchell faced did not arise from the same facts as required for a special plea and dismissed the appeal.

Orders