Round v The Queen
[2018] NZCA 155
•18 May 2018 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA581/2017 [2018] NZCA 155 |
| BETWEEN | MARTIN CHARLES ROUND |
| AND | THE QUEEN |
| Hearing: | 2 May 2018 |
Court: | Kós P, Brewer and Toogood JJ |
Counsel: | Applicant in person |
Judgment: | 18 May 2018 at 10 am |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brewer J)
Introduction
On 7 April 2017, Judge Bouchier convicted Mr Round on one charge of dangerous driving and one charge of driving with excess blood alcohol.[1] He appealed to the High Court and, on 10 August 2017, Gendall J dismissed his appeal because Mr Round, who was representing himself, failed to appear.[2]
[1]Police v Round [2017] NZDC 9303.
[2]Round v Police HC Christchurch CRI-2017-409-53, 10 August 2017.
Mr Round now applies for leave to appeal to this Court.[3]
Approach to the application
[3]Criminal Procedure Act 2011, s 237.
We may give leave to appeal only if the appeal involves a matter of general or public importance, or if a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.
Mr Round’s submissions to us were concerned largely with the reason why he failed to appear for his appeal to the High Court on 10 August 2017. We will not assess his explanation (such assessment would be unlikely to assist Mr Round given the almost complete lack of evidence supporting the explanation). Instead, because there has been no appellate review of Mr Round’s convictions, we will assess whether there is proper cause for appellate review at this stage.
We are satisfied there is no matter of general or public importance to be argued. This was a straightforward trial of unexceptional charges. Indeed, Mr Round does not attempt to identify a matter of general or public importance. Therefore, our approach to Mr Round’s application will be to consider whether a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.
Miscarriage of justice
The evidence called before Judge Bouchier was to the effect that Mr Round, apparently in the throes of road rage, repeatedly used his motor vehicle to ram the rear of the complainant’s vehicle. This was seen by a number of independent witnesses, including a station officer with the New Zealand Fire Service with some 31 years’ experience who was on duty at the time.
Mr Round did not remain at the scene of the incident. Instead, he drove home. Police officers attended at the scene and, a little over an hour after the incident,[4] arrived at Mr Round’s address. Mr Round invited the police officers to enter his home and voluntarily gave a statement as to his version of events. Afterwards, he showed the officers his vehicle and it was photographed. After that, a police officer asked Mr Round if he had consumed any alcohol that day. Mr Round’s response was that he had not had anything to drink at the time of the incident but that he had since consumed two glasses of wine. A breath screening test was administered which resulted in Mr Round being taken to the Police Station where the requisite evidential breath and blood tests took place.
[4]The police officers were directed at 4.20 pm to attend the incident. Having done so, they went to Mr Round’s home, arriving at around 5.23 pm.
Mr Round was unable to point to any error by Judge Bouchier, either on her application of the law relevant to the charges or her identification of the important elements of the evidence. Instead, Mr Round took issue with the Judge’s assessment that Mr Round’s evidence was not credible. He told us he believes Judge Bouchier was biased in her assessment of the evidence.
Turning, first, to the charge of dangerous driving, our assessment is that the Judge was justified in rejecting Mr Round’s evidence that he was merely trying to disentangle the front bumper of his car from the rear bumper of the complainant’s car. The evidence of the eye witnesses was clear that there was repeated ramming. That this was dangerous driving is manifest. There is nothing in Mr Round’s allegation of bias. It follows there is no basis for granting leave to appeal this conviction.
As to the conviction for driving with excess blood alcohol, Mr Round told us the police admitted filing documents containing false information and this went to the core of the prosecution. However, the document to which Mr Round referred was a standard breath and blood alcohol procedure sheet, and the notes of evidence record the Constable’s explanation as to the use he made of what was a proforma document. There is nothing in the point Mr Round attempted to make.
Mr Round then submitted the evidence of what happened in his flat is inadmissible because the Police did not have his permission to enter the flat. However, the police officers concerned gave clear evidence that Mr Round invited them inside, and Judge Bouchier accepted their evidence, as she was entitled to do. There is nothing in this point.
The remaining point is that it was wrong of the Judge to accept the blood alcohol test results because Mr Round had consumed alcohol after the incident. Again, there is nothing in this point. As Judge Bouchier appreciated, s 77(2) of the Land Transport Act 1998 establishes a conclusive presumption that the proportion of alcohol in a defendant’s blood at the time of an alleged offence is the same as the proportion of alcohol in the defendant’s blood indicated by a subsequent evidential blood test. This Court has previously stated:[5]
Section 77(1) provides that there is a conclusive presumption that the proportion of alcohol in a defendant’s breath at the time of the alleged offence (ie the driving or attempted driving) was the same as the proportion of alcohol in the person’s breath as indicated by the evidential breath test. Section 77(2) deals with blood tests in similar terms. These subsections thus deem the blood/breath, or blood/alcohol results achieved through subsequent testing, to be the same as at the time of the offence.
[5]Livingstone v Institute of Environmental Science and Research Ltd (2003) 20 CRNZ 253 (CA) at [38]; and Tebbs v R [2013] NZCA 523 at [28].
This does not necessarily mean that a breath test or a blood test can properly be required at a point of time so remote from the suspected offence that its result could have no probative connection with the charge.[6] But that is not the case here.
[6]Police v Bradley [1974] 1 NZLR 113 (CA) at 117.
The Police administered a breath screening test between one-and-a-half and two hours after the incident. When first asked about his alcohol consumption at his home, Mr Round said he had not had anything to drink. He then said he had had two glasses of wine since arriving home. After he knew the result of the breath screening test, he told the Police he had consumed “probably a bottle” of wine since getting home at (he said) about 4.45 pm. At the Police Station, after he was told the result of the evidential breath test, he told the constable he had had at least a couple of bottles of wine and he asked the constable to make a note of that. At the trial, he denied telling the constable he had consumed that amount. He said he had had one bottle or most of one bottle of wine.
Judge Bouchier did not accept Mr Round’s evidence generally:[7]
As far as the evidence of Mr Round I reject that as being fanciful and simply and patently untrue.
[7]Police v Round, above n 1, at [50].
We comment that while the Judge had the benefit of seeing and hearing the witnesses, the written record provides a strong foundation for her conclusion.
The evidence of Constable Ingram was that while at the house he asked Mr Round to show him where he had been drinking. Mr Round showed the Constable to his bedroom where the Constable saw a full glass of wine beside a bottle of wine which was about three-quarters full. There was also an unopened bottle.
Mr Round’s blood alcohol reading was 147 milligrams of alcohol per 100 millilitres of blood, whereas the legal limit is 80 milligrams of alcohol per 100 millilitres of blood. The evidence supports Mr Round’s initial statement to police that he had consumed two glasses of wine before they arrived. There is no reasonable possibility of consumption of alcohol to an extent which may have caused a miscarriage of justice through the application of s 77(2) of the Land Transport Act.
Result
Mr Round’s application for leave to appeal to this Court is declined. No matter of general or public importance has been identified and we can find no indication of a miscarriage of justice.
Solicitors:
Crown Law Office, Wellington for Respondent