Morgan v Police - [2013] NZHC 3431

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000083 [2013] NZHC 3431

BETWEEN ANDREW JOHN MORGAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 17 December 2013

Counsel: B A Crowley for Appellant
S A H Bishop for the Respondent

Judgment: 17 December 2013

Reasons: 17 December 2013

REASONS FOR JUDGMENT OF COLLINS J

Introduction

[1] The question I have to consider is whether the District Court made an error when it disqualified Mr Morgan from driving for six months after he was convicted of driving with excess breath alcohol.

[2] Those who are convicted of driving with excess breath or blood alcohol face a mandatory period of disqualification of at least six months “unless for special reasons relating to the offence [the court] thinks fit to order otherwise”.1

Context

[3] This question arises in the context of an appeal by Mr Morgan from a decision of Judge Harrop in the Wellington District Court.

1 Land Transport Act 1998, ss 56(3) and 81(1).

[4] Mr Morgan pleaded guilty to charges of driving with excess breath alcohol and careless driving. Judge Harrop convicted Mr Morgan on both charges and sentenced him to a six month period of disqualification and a fine of $400 plus court costs in relation to the excess breath alcohol charge. No penalty was imposed in relation to the careless driving charge.

Background

[5] On 21 September 2013, Mr Morgan attended a wedding with his former girlfriend. In an affidavit filed in the District Court Mr Morgan said that he consumed no more than two glasses of wine at the reception. He explained that he and his girlfriend took a taxi to where they lived in Grenada North. Mr Morgan went to his girlfriend’s place for a short time and then drove his van to his place which is nearby. Mr Morgan was not cross-examined on his affidavit.

[6] At approximately 1.50 am on 22 September 2013, when he was driving to his home, Mr Morgan lost control of his van and in doing so veered off the road into a power pole, a small tree and a fence. The tree fell onto a car parked in a driveway.

[7] Mr Morgan did not wait for the police at the scene. He left and walked to his home which was a short distance away. When he arrived home he started drinking Canadian Club Whisky. When the police arrived at his home he was tested and found to have a breath alcohol level of 746 micrograms of alcohol per litre of breath. The legal limit for driving is 400 micrograms of alcohol per litre of breath.2

District Court decision

[8] The reasons why Judge Harrop rejected Mr Morgan’s submission that there were special reasons relating to the offence which would otherwise justify him being allowed to continue to drive can be distilled to the following four points:

(1)First, Judge Harrop decided there was no proof from any other person as to how much Mr Morgan had to drink at 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 Morgan v Police

Details

AGLC: Morgan v Police [2013] NZHC 3431
Case: [2013] NZHC 3431
Decision Date: 17 December 2013

CaseChat Overview and Summary

The High Court was called upon to review a decision made by the District Court in the case of Andrew John Morgan, who was appealing his conviction and sentence for driving with excess breath alcohol. The District Court had imposed a six-month disqualification from driving, and the appeal focused on whether this sentence was appropriate given the circumstances of the case. The appeal hinged on the District Court's determination that there were no special reasons justifying a deviation from the mandatory disqualification period.

The central legal issue in this appeal was whether the District Court erred in its assessment of whether there were special reasons relating to Mr Morgan's offence that would warrant a departure from the mandatory six-month disqualification period. Additionally, the appeal questioned the exercise of judicial discretion by the District Court in imposing the six-month disqualification. The court was required to consider whether the District Court correctly applied the statutory criteria and exercised its discretion appropriately.

In reviewing the District Court's decision, the High Court found that the District Court had erred in its assessment of Mr Morgan's breath alcohol level at the time of driving. The High Court accepted Mr Morgan's unchallenged evidence that he consumed only two glasses of wine before driving, which made it highly unlikely that his breath alcohol level exceeded the legal limit at the time of driving. This factual error led to the conclusion that the District Court's exercise of discretion was based on an incorrect premise. The High Court found that the fact Mr Morgan was driving with a breath alcohol level below the legal limit constituted a special circumstance that justified a departure from the mandatory disqualification period. Consequently, the High Court quashed the six-month disqualification order and allowed the appeal.

The final orders of the court were that the six-month disqualification imposed by the District Court was quashed, and all other orders made by the District Court were upheld.

Orders