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O'Brien v Police

O'Brien v Police

Case [2025] NZHC 2814 26 September 2025

Appeal

Breach of Contract

Unconscionable Conduct

Admissibility of Evidence

Expert Evidence

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-0112

[2025] NZHC 2814

BETWEEN
DECLAN LAWRENCE O’BRIEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 August 2025

Appearances:

G D Prentice for appellant J T Lewis for respondent

Date of judgment:

26 September 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 26 September 2025 at 3.00pm.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
G D Prentice, Barrister, Hamilton Hamilton Legal, Hamilton

O’BRIEN v POLICE [2025] NZHC 2814 [26 September 2025]

[1] Declan O’Brien appeals against his conviction entered by Judge KBF Saunders in the District Court at Thames on 3 September 2024,1 after that day’s Judge-alone trial of a charge for driving with excess breath alcohol.2

Background

[2] On Thursday, 30 December 2021, Mr O’Brien travelled from Hamilton to Whitianga to attend a music concert that evening at Coroglen in the Coromandel. He travelled from Whitianga to Coroglen on a shuttle bus return ticket. He became delayed leaving the concert venue and missed the shuttle bus’ departure. He says he began walking from the site and was picked up by two occupants of a Toyota Hilux utility vehicle. The occupants were the vehicle’s owner and an acquaintance.

[3] At about 10.30 pm, the vehicle was stopped in a Whitianga supermarket carpark by police, understanding it earlier had been involved in a sustained loss of traction at Coroglen, who observed the driver then to move from the driver’s seat to its back seats. Subsequently, Mr O’Brien emerged from the vehicle’s left rear passenger door where he was confronted by one of the police officers, arrested and transported to the Whitianga police station. There is no dispute Mr O’Brien’s breath alcohol exceeded the limit for driving.

Conduct of trial

[4] Prosecution evidence at trial was from the two police officers who had stopped the vehicle. The bulk of evidence came from Sergeant Morrison, occupying the police car’s passenger seat, who said he saw the driver climb from the driver’s seat to the left rear passenger seat and therefore approached that door, rather than the driver’s side of the vehicle which Sergeant Morrison apprehended was vacated. The police car driver, Constable Ngauamo, saw a “shuffling” in the vehicle of the driver to the rear, where a third person sat in the right-hand seat, and the front passenger to the driver’s seat.

[5] At trial, Mr O’Brien’s defence essentially was he was not the driver of the vehicle. He contended police evidence he was the driver accordingly was mistaken.

1 New Zealand Police v O’Brien [2024] NZDC 31710.
2 Land Transport Act 1998, s 56(1).

Mr O’Brien did not give evidence at trial, but sought also to rely on the implausibility he would be driving a stranger’s car, as to which he emphasised his shuttle bus return ticket and his driver licence endorsed only for automatic cars.

[6] The prosecution evidence included a copy of CCTV footage of the supermarket carpark, from which 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 O'Brien v Police

Details

AGLC: O'Brien v Police [2025] NZHC 2814
Case: [2025] NZHC 2814
Decision Date: 26 September 2025

CaseChat Overview and Summary

Declan Lawrence O'Brien appeals against his conviction for driving with excess breath alcohol, which was entered by Judge KBF Saunders in the District Court at Thames following a trial without a jury. The appeal focuses on alleged errors by Mr. O'Brien's trial counsel, Neville Woods, in not drawing attention to a perceived inconsistency in police evidence and in not advising Mr. O'Brien to give evidence. The central issue for the court was whether any error by counsel resulted in a miscarriage of justice.

The court examined the trial evidence and found that the police officers had clearly observed Mr. O'Brien moving from the driver's seat to the rear passenger seat. The officers' identification of Mr. O'Brien as the driver was consistent and not undermined by any inconsistencies in their statements. Mr. O'Brien had denied being the driver and did not hold a licence for manual vehicles. Despite this, the District Court Judge accepted the officers' evidence, finding Mr. O'Brien guilty. On appeal, Mr. O'Brien argued that counsel should have advised him to give evidence, which might have led to a different outcome.

The court found that counsel's decision not to recommend that Mr. O'Brien give evidence was not an error, as there was no real risk that such evidence would have affected the trial's outcome. Mr. O'Brien himself stated he would have testified if advised it was in his best interest, but he chose not to because of anxiety. The court concluded that there was no reasonable possibility that Mr. O'Brien would have been found not guilty if he had given evidence, as his denials alone were unlikely to create reasonable doubt given the officers' positive identification.

The appeal was dismissed, and the conviction was upheld. The court found no miscarriage of justice and no grounds for setting aside the conviction.

Orders