Murphy v Police
[2014] NZHC 2835
•14 November 2014
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 respondentJudgment:
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 conclude otherwise, that the defendant drove the
motor vehicle there but considerably more recently than he admitted to the police.
[5] The Judge found the charge proved. The Judge sentenced Mr Murphy to 100 hours community work and six months disqualification.
[6] Mr Murphy appeals his conviction on the grounds that the prosecution did not prove that he drove. All that was proven was that he had driven two hours earlier. It was only if driving two hours earlier qualified as “recent” that the police officer had authority to require a breath test. If it does not qualify as “recent”, the appropriate remedy was exclusion of the evidence of the breath test.
[7] Mr Murphy appeals his sentence on the ground that there has been a 10-year lapse since his first excess breath alcohol conviction. That reading was low. There was a possibility of post-driving alcohol consumption. The appropriate sentence would have been a fine and disqualification.
Appeal against conviction - approach
[8] Section 229 of the Criminal Procedure Act sets out a person’s right to appeal against conviction. Under s 232(2)(b) and (c), the High Court can only allow an appeal if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason”.
[9] “Miscarriage of justice” is defined in s 232(4) as:
any error, irregularity, or occurrence in or in relation to or affecting the trial that–
(i) has created a real risk that the outcome of the trial was affected; or
(ii) has resulted in an unfair trial or a trial that was a nullity.
[10] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.1 The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b).
[11] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”2 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.3
Submissions on conviction
Appellant’s submissions
[12] Mr Ross submitted that on the basis of the accepted facts, it seemed that the vehicle had been driven more recently than two hours before the arrival of the police, but this was not put to Mr Murphy. Pursuant to s 77 of the Land Transport Act, the level of alcohol determined by a subsequent test is deemed to be the same as the level during driving, even if the test is not conducted for several hours. This can result in injustice if the driver has been drinking subsequent to driving. Mr Ross submitted that in appropriate cases where a driver has consumed alcohol after driving, the Court may treat the situation as an appropriate case for no disqualification under s 81.
[13] Mr Ross submitted that s 68 is also relevant. Section 68(1)(b) deals with a situation where a constable has reasonable cause to suspect a person has recently committed an offence against the Land Transport Act, involving driving a motor vehicle. He submitted that two issues arise out of this. First, did the constable have reasonable cause to believe that Mr Murphy had been driving, as opposed to someone else? Second, was the admission of driving two hours earlier sufficiently recent to meet the threshold in s 68(1)(b)? He submitted that while the constable
does not seem to have believed Mr Murphy when he said he had been driving two
1 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity.”: Matenga v R [2009] NZSC 18 at [30].
2 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
3 At [110].
hours earlier, he did not challenge him on this point. Mr Murphy smelled strongly of alcohol but had a reading just above the limit. Despite this, he was not questioned concerning after-driving drinking. Mr Ross submitted that the constable only had reasonable cause to suspect Mr Murphy had driven two hours earlier, as at that time he did not know sufficient detail of the report from a member of the public about bad driving. He submitted the basis for the breath test was good cause to suspect Mr Murphy had driven there, and because he had admitted that he had been drinking. Mr Ross submitted that reaching a view that a person had drunk alcohol and had driven was not sufficient to justify a breath test. The requirement is that the officer form, on reasonable grounds, a view that the person had recently committed an offence against the Land Transfer Act involving driving. Mr Ross submitted that the police officer cannot have had a reasonable belief that Mr Murphy had committed a recent offence against the Land Transfer Act involving driving, in order for there to be justification to require a breath test.
[14] Mr Ross submitted that the evidence should be excluded. In his submission, exclusion would appropriately balance the rigour of the evidential presumption in s 77, and the requirement for prosecutorial discretion in charging a driver when it appears that some or all of a driver’s alcohol intake may have occurred post driving.
Respondent’s submissions
[15] Ms Mitchell submitted that the police officer did have reasonable grounds to suspect a recent offence against the Act, as the car had been sighted driving erratically between 15 – 20 minutes earlier. In addition, the appellant admitted to driving the car to that location. The appellant was displaying signs of alcohol impairment. It was reasonable for the officer to hold the suspicion that the appellant had driven recently, despite his claim that he had arrived two hours earlier. The evidence as to the timing of arrival was offset by the combination of the admission that he had driven to that location, and the sighting of the car being driven erratically in that direction only a short time before. Therefore, Ms Mitchell submitted that the officer did have reasonable grounds to suspect a recent offence against the Act. Accordingly, the officer was justified in requiring a breath test. Further, it was unnecessary to consider whether the driving two hours previously was ‘recent’ for
the purposes of this offending, as the Judge and the police officer were proceeding on the reasonable basis that it was the appellant who had been sighted driving erratically only 20 minutes earlier.
Relevant law
[16] Section 68 of the Land Transport Act provides:
68 Who must undergo breath screening test
(1) An enforcement officer may require any of the following persons to undergo a breath screening test without delay:
(a) a driver of, or a person attempting to drive, a motor vehicle on a road:
(b) a person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:
…
…
(3) A person who has undergone a breath screening test under this section must remain at the place where the person underwent the test until after the result of the test is ascertained, and an enforcement officer may arrest the person without warrant if the person refuses or fails to remain at that place.
(4) If an enforcement officer is entitled to require a person to undergo a breath screening test, the officer may also require that person to undergo a test using a passive breath-testing device, which test is one where the officer holds a passive breath-testing device near the person's mouth for the purpose of ascertaining whether or not there is any alcohol in the person's breath.
(5) The use or non-use of a passive breath-testing device does not of itself affect the validity of a breath screening test.
(emphasis added).
[17] Section 77 of the Act provides:
77 Presumptions relating to alcohol-testing
(1) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant's breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant's breath indicated by the test.
…
[18] In Francis v Police, Randerson J made the following comments about what
“good cause to suspect” means:4
It is not in dispute that the issue of whether there was good cause to suspect that the appellant had been recently drinking and driving is a question of fact upon which the Judge must be satisfied to the civil standard, ie, on the balance of probabilities. It is also accepted that there must be a reasonable foundation on the evidence for the officer's assertion of having good cause to suspect although hearsay evidence may be sufficient for that purpose: Police v Anderson [1972] NZLR 233 and Police v Cooper [1975] 1 NZLR 216.
[19] In Shackelford v Police, MacKenzie J outlined what “good cause to suspect”
means:5
The existence of “good cause to suspect” on the part of the arresting officer is one of fact, and stands to be determined by reference to the whole of the facts of a particular case, and evidence of driving fault is not mandatory for a finding of “good cause”. That has been the law since as long ago as Fletcher v Police [1970] NZLR 702, at 705. In judging whether an officer has good cause to suspect, the prosecution is not required to prove that element beyond reasonable doubt, and the ordinary standard of proof is sufficient in judging that issue. That too has been clear since as long ago as Police v Anderson [1972] NZLR 233. The existence of good cause to suspect is not an ingredient of the offence; rather it is a procedural prerequisite to the offence, and the prosecution is not required to prove its existence to the criminal standard. It must be proven on the balance of probabilities; otherwise the subsequent use of the procedures authorised by the remaining statutory provisions will be in vain. North P said that good cause to suspect means “no more than ‘a reasonable ground of suspicion upon which a reasonable man may act’” (page 242). The officer need not be satisfied that the person in question has in fact recently committed an offence under the Act; the officer must simply have a reasonable ground of suspicion that an offence has been recently committed.
[20] In that case Mr Shackelford’s counsel had submitted that the police officer who breath tested Mr Shackelford did not have good cause to suspect him of recently committing an offence. The police officer had been called to check on a suspicious vehicle. When he arrived he found a car parked across the driveway leading to Parliament’s grounds. He noticed Mr Shackelford under a tree. Mr Shackelford said the car was his. He was unsteady and smelled strongly of alcohol. Mr Shackelford’s
counsel submitted that there was nothing on the evidence to suggest that
4 Francis v Police HC Auckland A114/01, 4 September 2001.
Mr Shackelford had driven after consuming alcohol. He could have parked his car there, gone to a pub, and come back. MacKenzie J considered there was sufficient evidence to establish good cause to suspect and said:6
…there was clear evidence that the appellant was intoxicated, that the vehicle belonged to the appellant, and that at some point he had driven it. All of the circumstances relating to the way in which the vehicle was parked and its state were, as the learned Judge held, sufficient to entitle the officer to infer from the circumstances that the vehicle had not been parked there for long, and therefore the appellant’s intoxicated state was likely to be contemporaneous with the operation of the vehicle. The alternative proposition, that the vehicle had been parked in that situation while the appellant was not affected by alcohol, had left it and had returned intoxicated to find the officer present, is so inherently improbable that the officer was entitled to reject that version of events.
[21] In Woodhouse v Police, Miller J considered an appeal concerning s 68(1)(b).7
Mr Woodhouse argued that the police officer did not have good cause to suspect that he had recently committed an offence against the Act. A member of the public had taken issue with how a car (found to have been driven by Mr Woodhouse by the District Court) was driving, and scuffled with a passenger. Mr Woodhouse drove to a nearby surf club. At the surf club, he and his passengers quickly consumed wine. The member of the public called the police. Twenty to thirty minutes after they had parked at the surf club, a police officer approached the car and Mr Woodhouse identified himself as the owner and driver. He was required to undergo a breath test. He failed that test. His lawyer argued that while there was no real dispute that Mr Woodhouse had been the driver, the officer approaching the car did not have good cause to suspect him of having been the driver at the time when the car was driven carelessly. On appeal, Miller J considered that the evidence that Mr Woodhouse admitted driving recently and smelt of alcohol, combined with the complaint from the member of the public, sufficed to show “on the balance of probabilities that on the objective facts known to the Constable he had reasonable grounds for suspecting that Mr Woodhouse had committed an offence against the Act.” Miller J expressed the view that 30 minutes was “recent”.
[22] In Wichman v Police, Mr Wichman appealed on the basis that the police officer did not have good cause to suspect him of having recently committed an
6 At [9].
offence against s 68(1)(b).8 When asked if he had consumed alcohol, Mr Wichman replied yes. In response to the question “when were you drinking?” Mr Wichman had said “I drove here sober, then I wanted to rotate the vehicle to get a better view of the harbour so I reversed and got stuck.” The District Court Judge found that there was good cause to suspect a recent driving offence because it could be inferred that Mr Wichman had been drinking after he arrived at the location, but before driving. Mallon J said:
I consider that the evidence establishes that the officer did have good cause to suspect that Mr Wichman had recently driven a motor vehicle while intoxicated.
…
Mr Wichman admitted to drinking that night. He had also admitted to driving, but having got stuck. The officer was not required to accept Mr Wichman’s answer that he had driven there “sober”…
Appeal against conviction - discussion
[23] In the present case, at the time of arriving at the carpark, Constable Renall knew that someone had reported the vehicle for poor driving. He saw a vehicle parked, with two people in the back seat. When the appellant got out of the back seat, he smelled strongly of alcohol. He told Constable Renall that he had driven to the carpark two hours previously. Constable Renall did not believe him as he had had a report that the vehicle had arrived at the carpark approximately 10 minutes before Constable Renall did.
[24] Constable Renall’s evidence provides a reasonable foundation for good cause to suspect that the appellant had recently committed a driving offence. As in Wichman, the appellant had admitted to driving, and had clearly been drinking. Constable Renall was not required to accept the appellant’s explanation of driving two hours earlier in the face of contradictory evidence. There is only one inference that can be drawn. That is that the driving the subject of the complaint was that of the defendant. I am satisfied that Constable Renall did have a good cause to suspect that the appellant had recently been drinking and driving, so that there was
justification to require a breath test.
8 Wichman v Police HC Wellington, CRI-2009-485-37, 25 May 2009.
[25] I have found that Constable Renall did have good cause to suspect that the appellant had driven recently. I therefore do not have to decide whether two hours counts as “recent”.
[26] Mr Ross’ submission that Constable Renall should have put it to Mr Murphy that he did not believe him is, in fact, misconceived. That Mr Murphy was not told by Constable Renall that he did not believe him does not affect the existence of Constable Renall’s good cause to suspect Mr Murphy of having driven recently.
[27] I conclude, therefore that the appeal against conviction must be dismissed and is accordingly dismissed.
Appeal against sentence – approach
[28] Section 250 of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[29] In any other case, the Court must dismiss the appeal.9
[30] Section 250 confirms the approach taken by the courts under the former
Summary Proceedings Act 1957.10 This approach was set out in R v Shipton:11
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
9 Criminal Procedure Act 2011, s 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].
11 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
[31] The maximum sentence available in this case was a sentence of three months’ imprisonment or a fine $4,500 fine. A minimum disqualification of six months was required to be imposed.
Submissions on sentence
Appellant’s submissions
[32] In relation to the sentence appeal, Mr Ross submitted a lower sentence was required because it had been 10 years since Mr Murphy’s first offence. He drew attention to a low level of alcohol being involved. He said there were no associated offences. He submitted there was post driving drinking. He submitted that there were no aggravating features present. He submitted the appropriate sentence would have been a fine of approximately $700 and court costs, and a disqualification of six months. He submitted that as Mr Murphy has partly completed his sentence of community work, the appropriate course was to quash the community work sentence and impose a six month disqualification order.
Respondent’s submissions
[33] In relation to the sentence appeal, Ms Mitchell submitted that assuming that the appellant’s submission that a typical sentence for a second offence with a guilty plea would be 60 hours community work and disqualification is correct, then
80 hours community work was ordered would be an appropriate sentence where there has been no guilty plea. The difference in this case is 20 hours, which does not justify interference with the sentence. She submitted the sentence imposed was not manifestly excessive. In addition, she submitted that the period of disqualification ordered in this instance falls well below that which would normally be imposed. She submitted that if the community work sentence was quashed, the disqualification period should be increased.
Appeal against sentence - discussion
[34] The appeal against sentence challenged the sentence of 100 hours community work. There was no challenge to the six months disqualification order which was the minimum that could be imposed.
[35] In Palmer v Police, Courtney J said:12
A review of recent similar cases indicates that a fine together with disqualification is the usual sentence imposed on second drink driving offences.13 Whilst acknowledging that the factual circumstances surrounding this type of offence vary widely, these cases show a discernible trend towards finding that a fine will generally be the appropriate sentence (in addition, of course, to disqualification).
[36] I agree with Courtney J. The reason there is a discernible trend towards finding a fine as the appropriate sentence is because that is supported by the legislation. Pursuant to s 8(g) of the Sentencing Act 2002, in sentencing an offender the court must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences in s 10A. In the hierarchy of sentences and orders set out in s 10A, a community based sentence of community work comes above a sentence of a fine, as being a more restrictive sentence. Section 13 provides:
13 Sentence of fine
If a court is lawfully entitled under this or any other enactment to impose a fine in addition to, or instead of, any other sentence, the court must regard a fine as the appropriate sentence for the particular offence unless—
(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine; or
(b) the court is satisfied that the application of any of the principles in section 8 to the particular case make a fine inappropriate; or
(c) any provision applicable to the particular offence in this or any other enactment provides a presumption in favour of imposing any other sentence or requires the court to impose any other sentence; or
(d) the court is satisfied that a fine, on its own or in addition to a sentence of reparation, would otherwise be clearly inadequate in the circumstances.
[37] Judge Adeane did not refer to s 13. His Honour erred in not considering the section, as it is mandatory.
12 Palmer v Police HC Auckland CRI-2009-404-262, 5 February 2010.
13 Wright v Police HC Christchurch A104/02 4 October 2005 Panckhurst J; Burke v Police HC Christchurch CRI-2007-409-000165 20 September 2007 Panckhurst J; Jones v Police HC Auckland CRI-2007-404-000325 Stevens J; Martin v Police HC Auckland CRI-2008-404-
000044 6 May 2008 Rodney Hansen J.
[38] As I have found an error, I approach the sentencing exercise afresh. After a consideration of similar cases, I consider that a fine in excess of what would be imposed on a first time offender is appropriate in this case. I consider that a sentence of a $1,000 fine, combined with 6 months disqualification, is the least restrictive sentence appropriate in the circumstances. The matters in s 13(a) – (d) do not apply.
Result
[39] The appeal against conviction is dismissed.
[40] The appeal against sentence is allowed. I would have imposed a sentence of
$1,000 in place of the sentence of community work. However, in view of the fact that the sentence of community work has been part served, I quash the sentence of
community work. The six month disqualification remains. No fine is imposed.
JA Faire J
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