R v Whitelaw - [2008] NZCA 307

IN THE COURT OF APPEAL OF NEW ZEALAND
CA263/06
[2008] NZCA 307
THE QUEEN
v
BARRY RAYMOND WHITELAW
Hearing:29 July 2008

Court:William Young P, Robertson and Arnold JJ
Counsel:Appellant in Person

R M Lithgow QC as Amicus Curiae
B J Horsley and C J Curran for Crown

Judgment:14 August 2008 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
Introduction
[1] On 6 March 2006, the appellant was tried summarily before Judge MacDonald on a charge of driving while disqualified. He was self-represented. The Judge found the appellant guilty; he was fined $400, ordered to pay costs of $130 and disqualified from driving for six months. A subsequent appeal to the High Court was dismissed by Allan J (Whitelaw v Police HC HAM CRI 2006-419-34 20 June 2006).
[2] On 18 September 2006, this Court granted leave to appeal on these questions of law:
Was the appellant’s right to consult and instruct a lawyer, without cost if so entitled, (as guaranteed by s 24(c) and (f) of the New Zealand Bill of Rights Act 1990), or his right to a fair trial (as guaranteed by s 25(a) NZBORA), breached in the circumstances of this case and, if so, should his conviction be quashed?

We note that Mr Whitelaw contended before us that his appeal should be allowed because of the delays which have occurred since the case was first heard. We see no merit in that suggestion. The delays that have occurred since the appeal was dismissed in the High Court are appreciable but not out of the ordinary. The time which has elapsed since leave was granted relates in a large part to efforts to establish the facts associated with the appellant’s lack of representation at trial. These efforts have not been particularly fruitful.
[3]       We will discuss the case by reference to the first two questions identified in the leave judgment, but before we do, we must first discuss the factual background.
Factual background
[4]       On 15 July 2004, the appellant was found guilty of a drink driving offence and disqualified from driving for nine months.   In the ordinary course of events, this disqualification would have expired at midnight on 14 April 2005. On 5 August 2004, the disqualification was suspended pending the determination of his appeal against conviction and sentence. This suspension lapsed when his appeal was dismissed on 6 October 2004. By reason of s 107(6) of the Land Transport Act 1998, the disqualification was extended by the period of suspension – two months and one day – and thus terminated at midnight on 15 June 2005.
[5]       On 29 or, more probably, 30 March 2005, the appellant was stopped by police officers while he was driving his wife’s vehicle. The vehicle was impounded.
[6]       The appellant and his wife met with Senior Sergeant Davy on 31 March 2005 to discuss the impounding of the car and the fact that the appellant had…

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 Whitelaw

Details

AGLC: R v Whitelaw [2008] NZCA 307
Case: [2008] NZCA 307
Decision Date: 14 August 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal of Barry Raymond Whitelaw against his conviction for driving while disqualified was dismissed. The case raised questions about the appellant's right to consult and instruct a lawyer without cost and his right to a fair trial under the New Zealand Bill of Rights Act 1990. The central issue was whether the appellant's rights under section 24(f) of the NZBORA or his right to a fair trial under section 25(a) were breached, leading to the potential quashing of his conviction.

The court examined whether the appellant's right to legal assistance without cost, as guaranteed by section 24(f) of the NZBORA, was breached. The court found that the appellant's efforts to obtain legal aid were insufficient, as he did not take the necessary steps to trigger his rights. Additionally, the court concluded that the interests of justice did not require the grant of legal aid because the maximum penalty faced by the appellant was three months' imprisonment, and he did not face a real prospect of a sentence of imprisonment if convicted.

Regarding the appellant's right to a fair trial, the court found that there was no dispute that the appellant had been driving while disqualified. The only issue in contention was whether the prosecution proved beyond reasonable doubt that the appellant knew at the time that he was not entitled to drive. The court found that the appellant's claims of misunderstanding the end date of his disqualification were implausible and rejected his evidence. The court also found no credible basis for the conclusion that the appellant was prejudiced by his lack of representation.

Ultimately, the Court of Appeal dismissed the appeal, upholding the appellant's conviction for driving while disqualified.

Orders