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…

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 Mullany v Police

Details

AGLC: Mullany v Police [2014] NZHC 314
Case: [2014] NZHC 314
Decision Date: 27 February 2014

CaseChat Overview and Summary

In the case of Mullany v Police, the appellant, Ms Casey Ann Mullany, sought leave to appeal to the Court of Appeal regarding the decision of the High Court, which dismissed her appeal against the District Court's refusal to discharge her without conviction after she pleaded guilty to driving with excess breath alcohol. The primary issue before the court was whether the High Court correctly dismissed Ms Mullany's appeal and if there were any grounds to grant leave to appeal to the Court of Appeal. The appellant contended that the High Court should have considered all grounds of appeal, including those she believed were overlooked. Additionally, she argued that the District Court lacked jurisdiction to rehear the matter due to an alleged misinterpretation of statutory provisions and that the court should not have considered the level of alcohol in her breath without expert evidence.

The court meticulously reviewed the grounds for appeal and the statutory context, ultimately concluding that the High Court did not err in its handling of the appeal. The court found that certain grounds were either not pursued or did not require determination. Regarding the jurisdiction of the District Court, the court held that Judge Adeane had the authority to conduct the rehearing as directed by Justice Allan, and this did not contravene any statutory provision. Furthermore, the court determined that expert evidence on the level of alcohol in the appellant’s breath was unnecessary because the seriousness of her offense was evident from her breath alcohol reading, which was twice the legal limit.

The court denied the application for leave to appeal, affirming the High Court's decision and dismissing the appeal on the grounds that no question of law of general or public importance was raised.

Orders