Narayan v Police - [2020] NZHC 2558

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000275

[2020] NZHC 2558

BETWEEN
DAVEND NARAYAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 September 2020

Appearances:

John Clearwater for the Appellant Conrad Purdon for the Respondent

Judgment:

30 September 2020

JUDGMENT OF MOORE J

[Appeal against conviction]

This judgment was delivered by me on 30 September 2020 at 12:00 pm.

Registrar/ Deputy Registrar Date:

NARAYAN v NEW ZEALAND POLICE [2020] NZHC 2558 [30 September 2020]

Introduction

[1] On 18 February 2020, Community Magistrate P A King, in the District Court at the North Shore, declined Mr Narayan’s application for a discharge without conviction on a single charge of driving with excess breath alcohol.1 She convicted him, ordered a period of disqualification and fined him.

[2] Mr Narayan appealed. On 9 June 2020, Judge A-M J Bouchier, in the District Court at the North Shore, dismissed Mr Narayan’s appeal against the decision of the Community Magistrate.2

[1] Mr Narayan again seeks to challenge the refusal to discharge him without conviction. Because bringing a second appeal requires leave pursuant to ss 237 and 253 of the Criminal Procedure Act 2011, and no such application had been filed, I issued a Minute requesting that Mr Narayan address the issue.3 Mr Clearwater, for Mr Narayan, filed a memorandum to this effect on 25 September 2020. The Crown opposes leave being granted.

[2] This Court must decline leave for a second appeal unless it is satisfied that either the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.4 The threshold is a high one. The Court will be slow to grant leave where success depends upon the court reversing concurrent findings of fact from the decisions below.5

Summary of facts

[3] In the evening of Sunday, 11 August 2019, Mr Narayan was driving a vehicle on Red Beach Road, Auckland. At approximately 7:45 pm, Mr Narayan’s driving was noticed by a member of the public because he was failing to stay within his lane. The Police were called. Mr Narayan was seen to pull into the Red Beach Mobil car park

1      Police v Narayan DC Auckland CRI-2019-044-002830, 18 February 2020.
2      Narayan v Police [2020] NZDC 10525.
3      Dated 25 September 2020.
4      McAllister v R [2014] NZCA 175; [2014] 2 NZLR 764 at [36].
5      Butler v Police [2016] NZCA 27 at [3].

where he got out. The Police arrived shortly afterwards and the member of the public pointed out Mr Narayan, as the driver. Mr Narayan showed signs of recent alcohol intake. Breath test procedures were carried out and Mr Narayan was found to have a breath alcohol level of 973 micrograms of alcohol per litre of breath. In explanation, he said that he was driving to charge his phone and had consumed four or five beers.

The Community Magistrate’s decision

[4] Applying 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 Narayan v Police

Details

AGLC: Narayan v Police [2020] NZHC 2558
Case: [2020] NZHC 2558
Decision Date: 30 September 2020

CaseChat Overview and Summary

The High Court of New Zealand was called upon to determine whether to grant Davend Narayan leave to bring a second appeal against his conviction for driving with excess breath alcohol. The initial conviction was upheld by the District Court, leading Narayan to seek leave for a second appeal to the High Court. The key issues before the Court were whether the appeal involved a matter of general or public importance, or whether a miscarriage of justice might occur without the appeal being heard. The Court examined whether the District Court had erred in its assessment of the gravity of the offending and the consequences of a conviction, particularly concerning the risk of deportation. The Court concluded that the District Court had correctly applied the legal principles and that the appeal did not involve a matter of general or public importance. Furthermore, the Court was not satisfied that a miscarriage of justice might occur if the appeal was not heard. Consequently, the application for leave to bring a second appeal was declined.

The reasoning of the Court was rooted in the principles set out in the Sentencing Act 2002 and the decisions of previous cases. The Court found that both the Community Magistrate and the District Court Judge had appropriately assessed the gravity of the offending and the consequences of a conviction, taking into account the mitigating and aggravating factors. The Court also noted that the District Court had correctly refrained from pre-empting immigration decisions, adhering to the orthodox practice in such cases. The Court held that the risk of deportation and its potential consequences were factors to be considered by the immigration authorities, not the criminal courts. Therefore, the Court was not persuaded that the appeal involved a matter of general principle or that a miscarriage of justice was likely to occur. The final orders of the Court were that the application for leave to bring a second appeal was declined.

Orders