Police v Mitchell - [2020] NZHC 1143

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000027

[2020] NZHC 1143

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

CHEYMAN LEE MITCHELL

Respondent

Hearing: 19 May 2020

Appearances:

F Sinclair for Appellant

P McDonnell and P Tucker for Respondent

Judgment:

27 May 2020

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 27 May 2020 at 3.00 pm Registrar/Deputy Registrar

Date:

NZ POLICE v MITCHELL [2020] NZHC 1143 [27 May 2020]

Introduction

[1] This appeal concerns the special plea provisions in s 46 Criminal Procedure Act 2011 (CPA). In particular, is a special plea available where a defendant is charged under both ss 32 and 56 Land Transport Act 1998 (LTA) and is convicted of one of the charges?

[2] Cheyman Mitchell, the respondent, was charged under the LTA for driving with excess breath alcohol pursuant to s 56(1) and driving contrary to a zero-alcohol licence pursuant to s 32(1)(b). On 28 November 2019, the respondent attempted to plead guilty to both charges, but at the invitation of Judge Neave he instead pleaded guilty to the s 56 charge and entered a plea of previous conviction to the s 32 charge. The issue of whether that plea was available was heard by Judge O’Driscoll, who found the special plea of previous conviction pursuant to s 46 CPA applies to the s 32 LTA charge.1 His Honour therefore dismissed the s 32 LTA charge.

Application for leave to appeal

[3] The Deputy Solicitor-General applies under s 296 CPA for leave to appeal the District Court judgment. The ground of the proposed appeal is that the District Court Judge erred in law by determining that a special plea was available under s 46 CPA, the respondent having been charged with offences under ss 32 and 56 LTA which arose from the same episode of driving. In the event that leave is granted and the appeal allowed, an order is also sought reinstating the charge under s 32 LTA.

[4] There exist conflicting decisions of the District Court in relation to the subject- matter of the appeal. In this case, Judge O’Driscoll preferred a line of authority which may be represented by the judgment of Judge Neave in Police v Tindall.2 Judge O’Driscoll declined to follow decisions in which the special plea was found to be unavailable.3

1      Police v Mitchell [2020] NZDC 1999.
2      Police v Tindall [2018] NZDC 22252. See also Police v Broom [2015] DCR 157 (DC); Police v Pailegutu [2019] NZDC 2135; Police v Ruki [2019] NZDC 24589; and Police v Duncan [2020] NZDC 559.
3      Police v Smith [2018] NZDC 2057; Police v Kumar [2019] NZDC 17758.

[5] In introducing his judgment, Judge O’Driscoll noted the absence of any decision of a senior court dealing specifically with whether the special plea is available to a defendant charged under ss 32 and 56 LTA. His Honour recorded the hope that there would be an appeal from his decision…

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 Police v Mitchell

Details

AGLC: Police v Mitchell [2020] NZHC 1143
Case: [2020] NZHC 1143
Decision Date: 27 May 2020

CaseChat Overview and Summary

In Police v Mitchell, the appellant, New Zealand Police, appealed against the decision of the District Court to dismiss a charge of driving contrary to a zero-alcohol licence pursuant to s 32(1)(b) Land Transport Act 1998 (LTA). The respondent, Cheyman Lee Mitchell, had been convicted of driving with excess breath alcohol pursuant to s 56(1) LTA. Mitchell had been charged with both offences, but pleaded guilty to the s 56 charge and entered a plea of previous conviction to the s 32 charge. The issue for the Court was whether the special plea of previous conviction pursuant to s 46 Criminal Procedure Act 2011 (CPA) applies to the s 32 LTA charge. The Court found that the two offences arose from different facts, and the appeal was allowed. The Court found that the District Court erred in law by determining that a special plea was available under s 46 CPA. The Court held that the two offences do not arise from the same facts as required for a special plea. The excessive level of breath alcohol and the breach of the licence entitlements are respectively at the core of the two charges. The Court concluded that the District Court should reinstate the charge under s 32 LTA.

Orders