O'Brien v Police

[2025] NZHC 2814

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 discerned there was “movement within the vehicle”:3

A flash of light or a white colour can be seen from the direction of the driver’s side of the vehicle. It is, however, impossible to determine what it is but something is going on inside the car. I am equally sure that the time from stop to when you start to get out of the rear of the vehicle is a matter of seconds. I cannot be accurate because there are no time indications on the CCTV footage but my best estimate is that it is around five seconds, maybe less, but certainly less than 10 seconds, so a quick, very short period of time.⁴

Her Honour was “sure” the police officers “had opportunity to see what was happening inside the Hilux as they approached it and after it came to a stop”.5

[7]                 Recognising the prosecution case “entirely” was dependent on the officers’ visual observations of the vehicle’s driver,6 and being cautious about that identification evidence,7 the Judge accepted Mr O’Brien “consistently … denied being the driver”.8 She noted the vehicle was not his car, he appeared facing forward when alighting from its left rear door and he was not licenced to drive a manual vehicle such as the Hilux.9 She said “I do not know whether [Mr O’Brien] can or cannot drive a manual vehicle”.10 She noted Mr O’Brien’s t-shirt he was photographed wearing on arrest included white writing on its front and sleeve.11

3 At [21].

4      The CCTV footage included a live date and stamp record, commencing at 22.51 and 11 seconds on 30 December 2021, showing the vehicle’s brake lights extinguishing at 16 seconds, its back left passenger door opening at 22 seconds, the police car coming into shot behind the vehicle at 24 seconds and Mr O’Brien beginning to exit the vehicle’s back left passenger door at 25 seconds, having wholly exited at 30 seconds. The police car’s front passenger door opens at 31 seconds and the sergeant exits at 35 seconds, walking across to Mr O’Brien still standing beside the vehicle’s open back left passenger door at 40 seconds.

5 At [22].

6 At [25].

7 At [26].

8 At [27].

9 At [27].

10 At [27].

11 At [27].

[8]                 But, in reliance on the “experienced observations of two police officers who say they kept the driver in their sight from the minute the vehicle came to a stop”,12 the Judge concluded, on “a very fine line”, “the only something that was happening in the vehicle was [Mr O’Brien] very quickly moving from the driver’s seat to the … rear passenger seat”.13 She thus was “sure” Mr O’Brien was driving the vehicle.14 Given his excess alcohol/breath test return, her Honour found the charge proved.15

Appeal against conviction

[9]                 For Mr O’Brien, Glen Prentice argues on appeal the conviction was the result of miscarriages of justice caused by trial counsel error in not drawing attention to a contended inconsistency in police evidence and in not advising Mr O’Brien to give evidence.

Approach to appeal

[10]             Appeals against conviction are determined by way of rehearing.16 I must allow the appeal only if satisfied either the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred or a miscarriage of justice has occurred for any reason.17 A miscarriage of justice means either something has gone wrong at trial to create a real risk the outcome of the trial was affected or to result in the trial itself being unfair or a nullity.18

[11]             A real risk trial’s outcome was affected arises if “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.19 Appellate focus then is on the effect of trial counsel’s error

12 At [30].

13 At [31].

14 At [32].

15 At [32].

16     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32], noting the principles in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 apply.

17     Criminal Procedure Act 2011, s 232(2).

18     Section 232(4).

19 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110]. See also, for example, Hoyle v R [2024] NZCA 665 at [18]; Wheble v R [2024] NZCA 541 at [64]–[65]; Wheat v R [2024] NZCA 118 at [12]–[13]; Keighran v R [2024] NZCA 61 at [39]–[41]; and Pay v R [2024] NZCA 41 at [57]–[59].

to bring about that outcome, rather than simply in characterisation of counsel’s conduct, in which:20

… consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate Court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[12]             Trial counsel’s failure to follow a defendant’s specific instructions on fundamental decisions—such as to plea, the election to give evidence or the decision to advance a defence based on the defendant’s version of events—generally will give rise to a miscarriage of justice.21 Where the error relates to a non-fundamental decision—such as if to call or give evidence—a miscarriage generally will arise only if the decision was not one a competent lawyer would have advised, and then only if what occurred may have affected trial’s outcome.22 The election if to give evidence was for Mr O’Brien to make but “it must be an informed decision and it is for counsel to ensure that the client has the necessary information, conveyed in an appropriate and timely way, to make the decision”.23 On appeal, “the real focus is on the trial process and its outcome rather than on the characterisation of counsel’s conduct”.24

Evidence on appeal

[13]             Mr O’Brien and his trial counsel, Neville Woods, both gave affidavit and oral evidence on appeal.

[14]             Mr O’Brien’s affidavit restated his instructions to Mr Woods: essentially— after missing his shuttle bus and being picked up by strangers to return to Whitianga,

20 At [70]. See also R v Scurrah CA159/06, 12 September 2006 at [18].

21 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65], referred to in ST v R [2025] NZCA 45 at [54].

22 At [77] and S (CA88/2014) v R [2014] NZCA 583 at [16], citing R v Sungsuwan, above n 19, at [66].

23    Tarring v R [2016] NZCA 452 at [26], reinforced in M v R [2025] NZSC at [6], referring to Hall v R, above n 21; Weston v R [2019] NZCA 541; and Tihema v R [2024] NZSC 112, [2024] 1 NZLR 473.

24 At [26], referring to R v Scurrah, above n 20, at [13], summarising the effect of R v Sungsuwan, above n 19.

in a manual vehicle he did not know how to drive—he sat in the vehicle’s left rear passenger seat throughout until getting out when stopped by police. He continued:

At  the conclusion of the police case there  was a  break and I spoke with   Mr Woods in an interview room. My father was present.

During that meeting Mr Woods told me that he did not believe the visual identification evidence regarding who was driving was sufficient for me to be convicted.

Mr Woods seemed confident after the police evidence was given and while he did ask if I wanted to take the stand, he did not definitively say whether, in his opinion, I should or shouldn’t.

I told Mr Woods that I preferred not to give evidence because I was very anxious about doing so.

However, if Mr Woods had clearly advised me that it would be in my interests to give evidence and present my account of events to the Court, I would have done so.

I relied entirely on his advice regarding whether or not to give evidence.

[15]             Under  cross-examination,  Mr  O’Brien  agreed  he  had  discussions  with Mr Woods in the period leading up to before trial in which they discussed if to give evidence, in which Mr Woods “ran … through both the pros and cons of giving evidence”, including issues about Mr O’Brien’s credibility and conduct at the time of being stopped by police. On re-examination, Mr O’Brien explained—at the close of the prosecution case, after having in his opinion a “good indication” Mr Woods thought “the identification evidence wasn’t that strong”—“I didn’t want to give evidence, I didn’t want to”. Asked “what informed [him] of that position”, Mr O’Brien said “Nothing. I was anxious and stressed”. He said the discussions of the ‘pros and cons’ of giving evidence were “quite some time before the trial itself” and responded “No” to a question if there was discussion of them on the day of the trial.

[16]             Mr Woods’ affidavit outlined his instructions as “[p]ut simply, Mr O’Brien denied being the driver of the vehicle”. He explained he had followed his “normal process”—of discussing issues relating to the giving of evidence, including:

… a thorough review of the Police evidence, an outline of the defendant’s legal rights and obligations, an identification of the strengths of the prosecution’s case, potential risks and benefits of giving evidence, alternative strategies, identification of how that fits with the defendant’s story …

and leaving the final decision to his client—with Mr O’Brien “on several occasions”. He noted some prospective defence witnesses as to Mr O’Brien’s intention or ability to drive on the night at issue were not present or available at trial (Mr O’Brien instructing him not to follow up with the other occupants of the car) and Mr O’Brien declined to call his father (although available and present) as a defence witness. He identified Mr O’Brien’s insobriety and interactions with the police officers at the time of his arrest as potentially affecting his credibility as a witness.

[17]             Mr Woods recalled having lunch with Mr O’Brien and his father at the conclusion of the prosecution case and discussed that evidence then. Mr O’Brien and his father had through the course of instruction been ‘forthright’ with their views on evidentiary issues, the father emphasising inconsistencies in the police officers’ evidence and a perceived change in position by Constable Ngauamo. Mr Woods advised the police witnesses “had remained steadfast in their beliefs but the issue was whether such belief were mistaken” or if there was reasonable doubt as  to such.    Mr Woods was clear, on the day of hearing, he “neither advised [Mr O’Brien] to give evidence or not to give evidence”, the decision being for him alone. A question was if to continue Constable Ngauamo’s cross-examination after the lunch break: “[t]he collective decision was made not to further pursue this line of questioning”.

[18]             Under cross-examination, Mr Woods considered the perceived change in Constable Ngauamo’s evidence—his statement’s reference to the driver “getting to the back and the clarification he has gone to the back, to the left-hand side”—was not “an inconsistency of a dramatic nature”. He accepted, without cross-examining the constable on the point, the Judge had no information about the difference between the constable’s statement and his evidence.

[19]             Mr Woods had “no recollection” of recanvassing on the day of trial his general advice on giving evidence. He apprehended “the case broadly unfolded in a consistent manner with what was expected” and not “to have either improved or worsened since the [under]standing if you like, expectation that [Mr O’Brien] wasn’t intending to give evidence”. Mr Woods said the issues informing if to give evidence were “very much left in the neutral” for Mr O’Brien’s decision; Mr O’Brien “was informed of all of

those advantages and disadvantages before [trial] and the advantage and disadvantages of giving evidence had not materially changed” by the time of his election.

Discussion

[20]             I am unsure of the foundation for any proposition Constable Ngauamo’s evidence materially diverged from his statement. The statement itself was not in evidence at trial. The Judge said she did “not have any statements”. But, as exhibited to Mr Woods’ affidavit as a record of his instructions (and accompanying submissions on appeal), the relevant aspect of the constable’s statement was “I observed the vehicle being three up, one male shuffled from the front to the back and then the front passenger moved into the driver’s seat”.

[21]             The constable’s statement thus only was non-specific as to where in the back of the vehicle the driver was said to have ‘shuffled’. Police advised Mr O’Brien’s solicitors on 31 August 2022 “both officers will give evidence that they observed the Defendant climb from the drivers seat into the left rear passengers seat and exit the vehicle from there”.

[22]The constable’s evidence at trial was:

As we pulled in, as we followed [the vehicle] into the carpark, I observed the person jump, shuffling back through the front driver’s and front passenger’s seat and into the back left seat.

…

So, the person that shuffled back through the middle into the back passenger’s seat from the front right and then the front passenger has shuffled over to the right, driver’s side.

…

There was one other person in the back right … directly behind the driver’s seat.

The constable repeatedly reinforced his observation, including by reference to other specific details of the vehicle (such as its lack of a rear window, aiding in clarity of observation) and its occupants, in examination-in-chief and under cross-examination as well as in response to the Judge. He responded “Definitely … not” to Mr Woods’

question if he “might be mistaken as to whether the person who was coming into the back, went to the right or went to the left … of the back seat”.

[23]             The constable’s less specific statement does not at all undermine the credibility of his evidence at trial. Given his statement’s references also to “three up” and a “front passenger”, and movement only by the driver and front passenger, there was only one unoccupied seat in the vehicle, at its back left. Thus there was no reasonable possibility of a more favourable verdict from clarification of the increasing specificity of the constable’s observation. It accordingly is unnecessary further to scrutinise Mr Woods’ conduct in this respect.

[24]             Trial’s  lunch adjournment from 1.02 pm, in which Mr Woods  spoke with   Mr O’Brien and his father, occurred at what transpired to be the end of the constable’s cross-examination. On trial’s resumption at 2.05 pm, the constable remained on his former oath but there was no re-examination or questions from the Judge and the witness was excused and the prosecution case concluded. Mr Woods then conveyed Mr O’Brien’s election not to call or give evidence.

[25] As recounted at [14] above, while Mr O’Brien “preferred not to give evidence because [he] was very anxious about doing so”, he would have done “if Mr Woods had clearly advised [him] that it would be in [his] interests to give evidence and present [his] account of events to the Court”. Such plainly is a proposition Mr Woods erred in not so advising him.

[26]             It is difficult to characterise such a quintessential exercise of professional judgement as an error. Mr Woods’ “normal process” is not disputed. So the argument must be something occurring at trial should have changed Mr Woods’ assessment of the desirability Mr O’Brien give evidence from ‘neutral’ to necessary. All that had happened at trial was presentation of the prosecution case. In that, police identification of Mr O’Brien as the driver of the vehicle obviously was core.

[27]             Sergeant Morrison’s evidence was, on following the vehicle into the supermarket carpark where it was to stop, he “focussed [his] attention on the driver of the vehicle”. As the police car pulled in behind it, the sergeant “was able to look

through the rear of the vehicle, towards the driver, and observed the [driver] climbing from the driver’s seat into the back left of the vehicle”. The sergeant “exited the patrol vehicle and approached the driver in the rear left-hand corner of the vehicle and as [the sergeant] approached [the driver] … got out of the back left passenger door”.

[28]             On then arresting Mr O’Brien, the sergeant asked Mr O’Brien about driving the vehicle. He said Mr O’Brien stated:

…he wasn’t the driver pretty much throughout … he wasn’t in the vehicle, that he was running alongside it, when we stopped it [and]… the driver had run off and that he didn’t know who the driver was.

[29]             Under cross-examination by Mr Woods, the sergeant agreed Mr O’Brien told him “in clear and unequivocal terms that he wasn’t the driver … at the start, throughout the whole procedure” and agreed also “he appeared to be frustrated, that that explanation wasn’t accepted, that he tore up tissues and what not”.

[30]             Mr Woods had the sergeant confirm Mr O’Brien’s driving licence was restricted to vehicles fitted with an automatic transmission. He sought also to have the sergeant produce Mr O’Brien’s shuttle bus return ticket, but the Judge queried:

[H]ow does that help me as to whether he was driving, he was clearly in the car, irrespective of how or whether he caught a bus, or how he got there. On the night in question, he is in a vehicle. The police say he was driving it, he says he wasn’t. What is the issue?

…

How can it be relevant to me, how he got to wherever he was going and how he was to return, because he was in a vehicle the police sergeant says he was driving it, he says he was not driving it. It is a matter for me to determine, whether the sergeant’s evidence and there is to be another witness as I understand it, proves the case beyond reasonable doubt. How the defendant got to and from somewhere that is not a relevant point in time is simply not relevant to my determination.

In continuing discussion between bench and bar, the Judge reaffirmed evidence of the shuttle bus return ticket was “not relevant” and did “not assist”.

[31]             Under continuing cross-examination, the sergeant read out his contemporaneous notebook entry “Watched driver climb from driver’s seat and out back left passenger door”. He repeatedly rejected any suggestion he was mistaken. In

response to questions from the Judge, he confirmed he identified Mr O’Brien as the driver “because [he] observed a person move from the driver’s seat to the rear left passenger seat and the person subsequently gave [him] a driver’s licence in the name of Mr O’Brien”. He did not see any other movement in the vehicle. Constable Ngauamo’s evidence (at [22] above) followed.

[32]             Thus, against the officers’ identification of Mr O’Brien as the driver, the Judge already had Mr O’Brien’s denial of driving and his restricted licence. Her Honour had held his shuttle bus return ticket irrelevant. As against the prospect Mr O’Brien’s remaining evidenced denials (both of driving or being able to drive the manual vehicle) alone might afford the Judge reasonable doubt about the prosecution case, if giving evidence, Mr O’Brien likely also would have to address his other statements and conduct at the time of his arrest. And Mr O’Brien refused to call the other occupants of the vehicle or his father to give evidence and (in the company of his father), in post-evidence discussion with Mr Woods, had agreed not further to pursue the constable’s evidence. So all Mr O’Brien could proffer in evidence was his denials.

[33]             Far from the course of trial rendering Mr O’Brien’s evidence a necessity,    Mr Woods’ assessment of its ‘neutrality’ appears justified. Nothing went wrong. Regardless, Mr O’Brien volunteered on re-examination “nothing” also informed his decision not to give evidence; he just “didn’t want to”, citing anxiety and stress. So there was no contributory error by Mr Woods. And, in any event, it is implausible anything Mr O’Brien may have said in evidence would have given the Judge reasonable doubt as to the prosecution evidence, meaning there is no reasonable possibility Mr O’Brien may have been found not guilty. Justice has not miscarried.

Result

[34]The appeal is dismissed.

—Jagose J