R v Craven CA77/05 - [2005] NZCA 371

IN THE COURT OF APPEAL OF NEW ZEALAND

CA77/05

THE QUEEN

v

MARK ALBERT CRAVEN

Hearing: 20 September 2005
Court: Hammond, Chambers and Robertson JJ Counsel: S J Mitchell for Applicant
A M Powell for Crown

Judgment: 22 September 2005

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS

(Given by Chambers J)

An application for special leave to appeal

[1] The police charged Mark Craven, the applicant, with driving a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol

R V CRAVEN CA CA77/05 22 September 2005

per litre of breath. The prosecution was dismissed in the District Court, Judge Hole correctly considering himself bound by a High Court decision, Hunt v New Zealand Police HC AK A182/02 10 December 2002. The effect of that decision was to render the result of Mr Craven’s allegedly positive evidential breath test inadmissible.

[2] The police appealed to the High Court under s 107 of the Summary Proceedings Act 1957. By the time that appeal was heard, this Court had reversed the High Court decision in Hunt: Police v Tolich & Hunt (2003) 20 CRNZ 150. The ground on which Mr Craven had succeeded in the District Court was accordingly swept from under his feet. Notwithstanding that, Mr Mitchell, for Mr Craven, advanced various arguments as to why the police’s appeal should not succeed and, further, as to why the case should not be remitted to the District Court for rehearing. Keane J, who heard the appeal, ruled that the appeal be allowed and he ordered that the case be remitted to the District Court for determination in light of this Court’s decision in Tolich & Hunt: NZ Police v Craven HC AK CRI2003-404-270
28 October 2003.

[3] Mr Craven sought leave to appeal to this Court under s 144(1) of the

Summary Proceedings Act. Keane J declined that application on 16 February 2005.

[4] Mr Craven has now sought special leave to appeal under s 144(3) of the same

Act.

Determination of the application for special leave

[5] Special leave may be granted only if, in the opinion of this Court, the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision: see s 144(3) and the leading case of R v Slater [1997] 1 NZLR 211.

[6] Mr Mitchell, who appeared for Mr Craven in this Court as in the two lower

Courts, said that the case gave rise to three important questions of law.

A jurisdictional bar?

[7] The first was as to the correct interpretation of s 108 of the Summary

Proceedings Act, which reads as follows:

No determination shall be appealed against by reason only of the improper admission or rejection of evidence.

[8] Mr Mitchell submitted that the police’s appeal in this case was barred by s 108, as the police…

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 R v Craven CA77/05

Details

AGLC: R v Craven CA77/05 [2005] NZCA 371
Case: [2005] NZCA 371
Decision Date: 22 September 2005

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Craven CA77/05 involved Mark Albert Craven, who was charged with driving a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath. The District Court dismissed the prosecution, following a High Court decision. However, the police appealed to the High Court, which reversed the earlier decision, leading to the case being remitted to the District Court for rehearing. Craven subsequently sought leave to appeal to the Court of Appeal, which was denied. Craven then applied for special leave to appeal to the same court.

The legal issues before the Court of Appeal were whether the police's appeal was barred by section 108 of the Summary Proceedings Act, whether the High Court had jurisdiction to answer the case stated despite its infelicities, and whether the High Court has a discretion not to remit a case when the case stated is answered in the prosecution's favour. Additionally, the Court considered the delay in applying for special leave.

The Court of Appeal dismissed the application for special leave, finding that none of the questions met the criteria under section 144(3) of the Summary Proceedings Act. The Court held that the appeal was not barred by section 108, as the appeal went directly to a matter of substantive law. Regarding the infelicities in the case stated, the Court found that the question was clear and that the High Court had jurisdiction to answer it. Lastly, the Court found that the High Court had the discretion not to remit the case, but that the reasons provided by Craven's counsel were not persuasive. The Court also considered the significant delay in applying for special leave as a factor in dismissing the application.

In conclusion, the Court of Appeal dismissed the application for special leave to appeal, finding that the questions of law raised did not meet the criteria for special leave and that the delay in applying for leave was extraordinary.

Orders