Newing v Police

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 51/2019
[2019] NZSC 90

BETWEEN	LANCE PHILLIP NEWING Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	C Mitchell for Applicant K L Kensington for Respondent
Judgment:	22 August 2019

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Newing pleaded guilty to driving with excess breath alcohol. He unsuccessfully sought a discharge without conviction and was convicted, fined and disqualified from driving by the Community Magistrate.[1] The discharge was sought on the basis of the effect a conviction would have on his employment.
[1]New Zealand Police v Newing [2017] NZDC 16950 (Community Magistrate Cole).
Mr Newing appealed unsuccessfully against the decision declining a discharge without conviction to the District Court.[2] Mr Newing’s subsequent application for leave to appeal to the High Court was dismissed by that Court.[3] He now seeks leave to appeal to this Court direct from the decision of the District Court.

The proposed appeal

[2]Newing v New Zealand Police [2018] NZDC 5927 (Judge Blackie).

[3]Newing v New Zealand Police [2019] NZHC 772 (Gault J) [HC judgment].

Mr Newing seeks leave to appeal directly from the decision of the District Court because the High Court’s decision to decline leave is final.[4] As the respondent submits, there is a question whether this Court has jurisdiction to hear a direct appeal in this case. That question arises because the appeal to this Court would be a second appeal and the relevant provisions state that the only second appeal court is the High Court.[5] However, we do not need to decide this point because there are no exceptional circumstances that would justify a direct appeal.[6]
[4]Criminal Procedure Act 2011, s 213(3).
[5]Criminal Procedure Act 2011, ss 238(a) and 254(a). The position may be contrasted in this respect from that before the Court in Basnyat v New Zealand Police [2019] NZSC 21 where the Court acknowledged the possibility of a direct appeal from the decision of the High Court to decline an application for a discharge for excess breath alcohol.
[6]Senior Courts Act 2016, s 75(b).
The proposed appeal would not challenge the principles applied by the Courts below. Rather, the appeal would be fact specific. No questions of general or public importance arise.[7] Nor does anything raised by Mr Newing give rise to the appearance of a miscarriage of justice.[8] The offending was treated as moderately serious reflecting the excess breath alcohol level (707 micrograms of alcohol per litre of breath)[9] and the fact Mr Newing was stopped because he was speeding and failed to stop at a red traffic light. The evidence as to the consequences of a conviction on which Mr Newing seeks to rely, which was not before the District Court, was considered by the High Court in declining leave.[10]
[7]Senior Courts Act 2016, s 74(2)(a).
[8]Senior Courts Act 2016, s 74(2)(b).
[9]The limit is 250 micrograms of alcohol per litre of breath: Land Transport Act 1998, s 11(a).
[10]Gault J did not consider the evidence was sufficiently cogent and, in any event, was not satisfied that “the consequences of conviction would be out of all proportion to the gravity” of the offending: HC judgment, above n 3, at [29].
The application for leave to appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Lance Phillip Newing, the applicant, sought leave to appeal against the decision of the District Court that dismissed his application for leave to appeal against the refusal of a discharge without conviction for driving with excess breath alcohol. The District Court had previously dismissed the applicant’s appeal against the decision of the Community Court that had declined to grant a discharge without conviction. The applicant had also unsuccessfully sought leave to appeal to the High Court. The central issue before the Supreme Court was whether the Court had jurisdiction to hear a direct appeal from the District Court's decision, given that the only second appeal court specified in the Criminal Procedure Act 2011 is the High Court. However, the Court found it unnecessary to determine this jurisdictional question as it was clear that there were no exceptional circumstances justifying a direct appeal. The Court noted that the appeal was not aimed at challenging the principles applied by the lower courts, but rather was fact-specific and did not raise questions of general or public importance. Additionally, the consequences of conviction, which the applicant argued would severely impact his employment, had already been considered by the High Court in declining leave. Therefore, the Court concluded that the application for leave to appeal should be dismissed.

The Supreme Court’s reasoning hinged on the nature of the appeal and the lack of exceptional circumstances. The Court held that the appeal was not intended to challenge the principles applied by the lower courts but was fact-specific. It did not involve questions of general or public importance, nor did it suggest any appearance of a miscarriage of justice. The Court acknowledged that the seriousness of the offence, which involved a significant excess of the legal alcohol limit and additional traffic violations, justified the denial of a discharge without conviction. The High Court had already considered the applicant’s evidence regarding the impact of a conviction on his employment and found it insufficient to warrant leave to appeal. Consequently, the Supreme Court dismissed the application for leave to appeal, confirming that the District Court's decision stood.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established