Perry v Police - [2015] NZHC 2810

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-251 [2015] NZHC 2810

BETWEEN
SCOTT PERRY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 November 2015

Counsel:

A J Maxwell-Scott for Appellant
S P H Elliott for Respondent

Judgment:

12 November 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 12 November 2015 at 1:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: A J Maxwell-Scott (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

PERRY v POLICE [2015] NZHC 2810 [12 November 2015]

Introduction

[1] Mr Perry was charged with driving with excess breath alcohol (third or subsequent occasion). He defended the charge but, on 23 July 2015, Judge RG Ronayne found it proved and convicted him.1 Mr Perry appeals the conviction.

[2] The basis of the appeal is that there was not enough evidence for the Judge to conclude properly that the charge was proved beyond reasonable doubt.

Principles governing appeals against conviction

[3] I can only allow Mr Perry’s appeal in this case if I conclude that Judge Ronayne erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred.2

[4] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity.3

[5] 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.”4 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.5

[6] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.6 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross,
or so persistent, or so prejudicial, or so irremediable” that the Court must quash the

1      Police v Perry [2015] NZDC 14359.
2      Criminal Procedure Act, s 232(2)(b)–(c).
3      Section 232(4).
4      R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
5 At [110].
6      Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].

decision.7 Ms Maxwell-Scott for Mr Perry places emphasis on the statement of the

Court of Appeal in R v Connell8 where the Court said:

There are cases where a point or argument is of such importance that a Judge’s failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice.

[7] Courts have…

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 Perry v Police

Details

AGLC: Perry v Police [2015] NZHC 2810
Case: [2015] NZHC 2810
Decision Date: 12 November 2015

CaseChat Overview and Summary

The case of Perry v Police involves Scott Perry, who was charged with driving with excess breath alcohol on a third or subsequent occasion. Perry was found guilty by Judge RG Ronayne and subsequently appealed the conviction. The appeal's basis is the contention that there was insufficient evidence for Judge Ronayne to conclude that the charge was proved beyond reasonable doubt. The appeal court must determine if there was a miscarriage of justice, which occurs if there is a real risk that the trial outcome was affected or if the trial was unfair. The appeal court must consider the evidence presented to Judge Ronayne but ultimately reach its own decision on the merits. The appeal court is generally cautious in interfering with a trial judge's findings of fact, but will do so in exceptional circumstances.

The court found that the evidence presented to Judge Ronayne was incomplete, and there were reasonable possibilities that needed to be considered. The court accepted the submission that Judge Ronayne had accepted Constable Scott's evidence too readily and did not consider it critically in light of the Defence evidence. The court found that Constable Scott's evidence could not exclude the reasonable possibility presented by the Defence witnesses. The court also noted that there was a reasonable possibility that Constable Scott may have misheard Mr Perry's admissions, or that Mr Perry had been drinking prior to pulling over to the parking area.

The appeal court decided that the evidence of Constable Scott could not exclude the reasonable possibility presented by the Defence witnesses. The court found that there was a reasonable possibility that Mr Perry had stopped his car at the parking area and gone with his friend to consume alcohol. The court also found that it was reasonably possible that Constable Scott had made notes of what he thought he heard rather than what he actually heard. Consequently, the appeal was allowed, and Mr Perry's conviction was quashed. Given the state of the evidence, the appeal court did not order a retrial.

Orders