Rogers v Police - [2019] NZCA 94

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA584/2018
[2019] NZCA 94

BETWEEN	CLIFFORD TREVOR ROGERS Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Gilbert, Wylie and Thomas JJ
Counsel:	W R Hawkins for Applicant R K Thomson for Respondent
Judgment: (On the papers)	8 April 2019 at 2 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to file the application for leave to appeal is granted.
BThe application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

At 12.35 pm on 17 September 2017, Clifford Rogers was driving a truck on State Highway 2 near Hastings when he failed to negotiate a gentle curve in the road and crashed into a fence. Mr Rogers was taken to hospital where a blood specimen was taken pursuant to s 73 of the Land Transport Act 1998 (the Act). On analysis, the specimen was found to contain methamphetamine, a controlled drug specified in sch 1 of the Misuse of Drugs Act 1975. Mr Rogers was then charged under s 58(1)(b) of the Act which provides:
58       Contravention of section 12
(1)       A person commits an offence if the person drives … a motor vehicle      on a road—
…
(b)      If the person’s blood, as ascertained from an analysis of a   blood specimen subsequently taken under section 73, contains   evidence of the use of a controlled drug specified in   Schedule 1 of the Misuse of Drugs Act 1975.
Mr Rogers gave evidence at his trial before Judge Adeane. He said that the day before the accident, he assisted in decontaminating a motel unit which “may have been affected by methamphetamine”. The Judge said of this suggestion:[1]
There is absolutely no evidence, however, of this. Of where the premises were. Of the reasons for which it is considered methamphetamine might have been present at any time. Of the need for the decontamination. Of the part played in it by Mr Rogers. Or indeed of anything else — except Mr Rogers’ assertion, (which could be a convenient one) that he had cleaned up some methamphetamine the day before thereby leading the Court to speculate that this may bear in some relevant way upon the charge.
[1]Police v Rogers [2018] NZDC 15132 at [3].
In the absence of any evidence to support Mr Rogers’ defence, the Judge found the charge proved. Mr Rogers was accordingly convicted, fined $600 and disqualified from driving for six months.
Mr Rogers appealed against his conviction to the High Court. The appeal was dismissed by Collins J in a judgment delivered on 28 August 2018.[2] The Judge noted that the offence created under s 58(1)(b) of the Act is one of strict liability.[3] Once the prosecution has proved the act of driving and evidence of use of the controlled drug as ascertained from an analysis of a blood specimen taken from the driver, the onus shifts to the defendant driver to…

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 Rogers v Police

Details

AGLC: Rogers v Police [2019] NZCA 94
Case: [2019] NZCA 94
Decision Date: 8 April 2019 at 2 pm

CaseChat Overview and Summary

Clifford Trevor Rogers appealed against his conviction for driving a vehicle while under the influence of a controlled drug, in contravention of the Land Transport Act 1998 (NZ). The appeal was dismissed by the High Court, and Mr Rogers now seeks leave to bring a second appeal. The Court of Appeal was required to decide whether the appeal involved a matter of general or public importance or whether a miscarriage of justice may have occurred. The court was also required to determine whether the trial court erred in interpreting the words "evidence of use" in s 58(1)(b) of the Act and whether the standard of proof applied was correct.

The court held that s 58(1)(b) of the Act does not require proof of voluntary use of the drug or the level at which the drug was present in the driver's blood. The presence of the drug in the driver's blood is sufficient evidence of its use for the purposes of the section. The court held that the prosecution does not need to prove that the driver knowingly consumed the drug, and that such a requirement would defeat the clear intention of the legislature in creating this strict liability offence. The court also held that the onus is on the defendant to prove total absence of fault for driving with the controlled drug in their bloodstream, and that total absence of fault must be proved on the balance of probabilities. The court found that the proposed appeal did not raise a question of general or public importance capable of serious argument and that there was no appearance of a miscarriage of justice having occurred.

The application for an extension of time to file the application for leave to appeal is granted. The application for leave to bring a second appeal is declined.

Orders