Mullany v Police

[2014] NZHC 314

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2013-416-000019 [2014] NZHC 314

BETWEEN  CASEY ANN MULLANY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   On the papers.

Counsel:                  Z Mohamed for the Appellant

K Laurenson for the Respondent

Judgment:                27 February 2014

JUDGMENT OF GILBERT J

This judgment is delivered by me on 27 February 2014 at 4.30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

MULLANY v NEW ZEALAND POLICE [2014] NZHC 314 [27 February 2014]

Introduction

[1]      Ms Mullany applies  for leave to  appeal  to the Court of Appeal on  four questions of law arising out of my judgment dismissing her appeal from Judge Adeane’s refusal to discharge her without conviction following her guilty plea to a charge of driving with excess breath alcohol.1

Background

[2]      Ms Mullany pleaded guilty in the Gisborne District Court on 30 January 2013 to a charge of driving with excess breath alcohol.   Her reading was 801 micrograms of alcohol per litre of breath, twice the legal limit.   Judge Hubble discharged her without conviction and made an order for permanent suppression of her name.

[3]      The Police appealed against Judge Hubble’s decision by way of case stated on a question of law pursuant to s 107 of the Summary Proceedings Act 1957. Allan J   answered   the   four   questions   of   law   in   a   judgment   delivered   on

15 May 2013.2  Two of the questions concerned whether Judge Hubble had identified

the correct test for a discharge without conviction under s 107 of the Sentencing Act

2002 and, if so, whether there was sufficient material available to the Judge to support a discharge without conviction.   The other two questions related to the suppression order.

[4]      Significantly, for present purposes, Allan J answered “No” to the following

question of law:

Was there sufficient material before the Judge to support a finding that there were direct and indirect consequences of a conviction for the respondent that would be out of all proportion to the gravity of the offence?

[5]      Having answered the questions, Allan J concluded his judgment as follows:

As agreed by counsel, the proceeding is remitted to the District Court for reconsideration.  For the avoidance of doubt, the sentencing process is to be conducted entirely afresh.  It is agreed by counsel that either side is entitled

1      Mullany v Police [2013] NZHC 3546.

2      Police v M [2013] NZHC 1101.

to make further submissions and to provide further evidence or information. The suppression order will inure until reconsidered in the District Court.3

[6]      Judge Adeane presided over the sentencing rehearing in the District Court at Gisborne on 18 November 2013.   The Judge lifted the suppression order and this decision is not challenged by Ms Mullany.   The Judge declined to discharge her without conviction.  He disqualified her from driving for six months but imposed no other penalty.

[7]      Ms Mullany appealed Judge Adeane’s decision.  In her notice of appeal she

listed the following grounds of appeal:

(a)       The Judge failed  to  recognise that by virtue of s.131,  Summary

Proceedings Act 1957, the partial rehearing was invalid.

(b)      Having regard to clause [69] in the decision of Justice Allan, the rehearing and in particular, the sentencing process was invalid.

(c)       Having regard to the law applicable, the decision is wrong.

(d)      Such further or other grounds as may appear proper upon perusal and consideration of the decision and the sentencing notes.

(e)       The Judge erred in declining my application for a discharge without conviction.

[8]      Grounds (a) and (b), which are effectively the same, were not addressed in the judgment on the understanding that these were not pursued.  It now appears that there may have been a misunderstanding about this between counsel and the Court. In any event, the central issue in the appeal, which arises out of grounds (c) and (e), was whether the Judge was wrong to conclude that the threshold test in s 107 of the Sentencing Act was not met in this case.  I came to the same conclusion as the Judge that the threshold test had not been met and accordingly there was no jurisdiction to discharge Ms Mullany without conviction.  I therefore dismissed the appeal.

Application for leave to appeal

[9]      Ms Mullany applies for leave to appeal to the Court of Appeal against my decision.  She wishes to raise the following as questions of law:

(a)       Was the High Court correct in ignoring the rest of the grounds of the appeal and in particular grounds (a) and (b). Alternatively, was it the duty of the High Court to consider each of the grounds and make specific findings on each?

(b)       Did Judge Adeane have jurisdiction to rehear the matter, having regard  to  the  fact  that  Justice Allan  ordered  a  partial  rehearing confined to sentencing contrary to s.131(2), Summary Proceedings Act.

(c)       Alternatively was it the duty of the District Court Judge to ascertain that the order for the rehearing is properly before him before embarking upon the rehearing confined to the sentencing process? (and unnecessarily rebuking counsel for his own shortcomings?)

(d)       Is the Court qualified to consider the effect of the level of alcohol in a person’s breath or blood in the absence of expert evidence?  (For example, the previous limit of 500 was arbitrarily reduced some years ago to 400 and a few days or a few weeks ago to 250 from

1 December 2014 at the whim of politicians.  The original level of blood was reduced from 100 to 80 and to 50 from 1 December

2014).

Should leave to appeal be granted?

[10]     There is generally no right to bring a second tier of appeal from decisions of the District Court in summary proceedings.  Leave to appeal may only be granted if the Court is satisfied that the proposed appeal raises a question of law of general or public importance or there is some other reason why it ought to be submitted to the Court of Appeal for decision.4

[11]     The  first  proposed  question  of  law  concerns  whether  the  Court  should consider all grounds of appeal.  The answer to this question is obviously yes unless one or more of the grounds does not require determination because of the Court’s decision on other grounds or if it has been abandoned.  The proposed question of law is not one requiring decision by the Court of Appeal.

[12]     The second proposed ground of appeal concerns whether Judge Adeane had jurisdiction to rehear the matter.  Mr Mohamed submits that Allan  J ordered a partial rehearing confined to sentencing.  He submits that this was contrary to s 131(2) of the  Summary Proceedings Act.    This  issue  was  not  addressed  in  my  judgment because I understood that the point had been abandoned.  In any event, I am satisfied

that there is nothing in this point. As is clear from [69] of Allan J’s judgment quoted above, his Honour directed a sentence rehearing in the District Court.  The Judge had power to make this order in terms of s 112 of the Act.   Section 131 of the Act does not apply in this case.  That section permits the Court considering an appeal to direct a rehearing of the information or complaint.  Contrary to Mr Mohamed’s submission, Judge Adeane had jurisdiction to reconsider the sentencing.   This is exactly what Allan J directed with the agreement of counsel.  I do not consider that this question raises a question of general or public importance and I see no reason why it ought to be submitted to the Court of Appeal for decision.

[13]     The third proposed question of law is closely related to the second and is clearly not one that ought to be submitted to the Court of Appeal for the same reasons.

[14]     The fourth and final proposed question of law does not require the attention of the Court of Appeal.   Neither my judgment nor the judgment of Judge Adeane required determination of the effect of a particular level of alcohol in a person’s breath or blood.  Expert evidence on this was not required and none was submitted by either party.  The inescapable fact is that Ms Mullany was driving with a breath alcohol limit twice the legal limit at the time.   In agreement with Judge Adeane, I considered that Ms Mullany’s offending was serious and that the consequences of a conviction for her were not out of all proportion to the gravity of this offending.

Result

[15]     The application for leave to appeal to the Court of Appeal is dismissed.

M A Gilbert  J