Murphy v Police

[2014] NZHC 2835

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-36 [2014] NZHC 2835

IN THE MATTER

of Section 231 of the Criminal Procedure

Act 2011

BETWEEN

LIAM MURPHY Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 November 2014
Counsel:	PN Ross for appellant M Mitchell for respondent
Judgment:	14 November 2014

JUDGMENT OF FAIRE J

Solicitors:           Cathedral Lane Law, Napier

Crown Solicitor’s Office, Napier

Murphy v New Zealand Police [2014] NZHC 2835 [14 November 2014]

Table of Contents

Introduction ............................................................................................................[1] Background ............................................................................................................[2]

District Court decision ...........................................................................................[3]

Appeal against conviction - approach ....................................................................[8]

Submissions on conviction.........................................................................................

Appellant’s submissions  [12]

Respondent’s submissions  [15] Relevant law .........................................................................................................[16] Appeal against conviction - discussion ................................................................[23] Appeal against sentence - approach .....................................................................[28]

Submissions on sentence............................................................................................

Appellant’s submissions  [32]

Respondent’s submissions  [33] Appeal against sentence - discussion ...................................................................[34] Result....................................................................................................................[39]

Introduction

[1]      On 14 July 2014, Mr Liam Murphy was convicted of driving with excess breath alcohol.   He was sentenced to 100 hours community work and six months disqualification.

Background

[2]      On 26 January 2014, Mr David Halliday reported to the police that he had seen someone driving erratically.   Police officers drove to a public carpark near Chesterhope Bridge in Hastings.   Mr Murphy’s car was parked there.   He and a passenger were sitting in the back seat.  Mr Murphy admitted to driving to the area “about two hours ago”.  He was breath tested and found to be over the limit.

District Court decision

[3]      Judge Adeane recorded that:

(a)      The appellant’s vehicle had been seen being driven erratically by who

complained to the 555 number;

(b)The witnesses watched progress of the vehicle to a point where an officer subsequently found it;

(c)      The officer understood that he was on the scene within 15 minutes of the complaint;

(d)The officer found two people sitting in the back of the car.   The appellant was one of them.  He was the worse for wear with alcohol;

(e)      The  officer,  in  answer  to  questions  received  an  answer  from  the appellant “I drove here about two hours ago, I have been at a mate’s place over at Napier”;

(f)      On the strength of that, the officer proceeded to administer a breath screening test.   He took the appellant away for an evidential breath test which was in excess of the legal limit;

(g)The appellant made no comment about not being the driver at any particular point.

[4]      The Judge described counsel’s submission that the possibility had not been excluded that someone else drove the car in the meantime and was observed driving erratically by police informants as a matter of conjecture. The Judge described it as:

…the kind of possibility or fanciful doubt effectively, with which the court is not concerned.  The clear evidence here is that the vehicle was being driven, driven to a certain place and found to contain the defendant who admitted driving  it  there.     It  is  a  fair  and  reasonable  inference  from  these circumstances, and contrary to any evidential basis, and subject to there being no evidential basis to…