Singh v Police - [2021] NZSC 78

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 42/2021
[2021] NZSC 78

BETWEEN	MANINDER SINGH Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	A J Haskett and A A Rasheed for Applicant C A Brook and S E Trounson for Respondent
Judgment:	2 July 2021

JUDGMENT OF THE COURT

AThe application to adduce evidence in support of the application is dismissed.

BThe application for leave to appeal is dismissed.

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REASONS

The applicant was convicted on a charge of driving a vehicle with the proportion of alcohol in his breath exceeding 400 mcg of alcohol per litre of breath.[1]
[1]New Zealand Police v Singh [2019] NZDC 10147 (Judge D J Harvey). The proportion of alcohol in the applicant’s breath was 986 mcg of alcohol per litre of breath.
He appealed to the High Court but his appeal was dismissed.[2]
[2]Singh v New Zealand Police [2020] NZHC 368 (Katz J).
The applicant applied to the Court of Appeal for leave to bring a second appeal. In his application for leave, he sought leave to challenge the rejection by the High Court of the arguments he had made in the District Court. But, in addition to this, he also sought leave to raise a new ground, namely that the police had failed to comply with s 77(3A)(a) of the Land Transport Act 1998. This raised the “Block J” issue, which has been the subject of a recent judgment of this Court in McKinney v New Zealand Police.[3] In McKinney, this Court refused leave to bring an appeal that would, in substance, have amounted to a challenge to the decision of the Court of Appeal resolving the Block J issue in favour of the police: Re Solicitor‑General’s Reference (No 1 of 2020).[4]
[3]McKinney v New Zealand Police [2021] NZSC 68.
[4]Re Solicitor-General’s Reference (No 1 of 2020) [2020] NZCA 563.
At the time the applicant’s application for leave to appeal was before the Court of Appeal, the Block J issue remained unresolved, as the Court had not yet heard Re Solicitor‑General’s Reference (No 1 of 2020). Because of the possibility that a decision against the police in Re Solicitor‑General’s Reference (No 1 of 2020) would give rise to a miscarriage of justice in the applicant’s case, the Court granted Mr Singh leave to appeal in regard to the point at issue in Re Solicitor‑General’s Reference (No 1 of 2020).[5] In all other respects it dismissed his application for leave to appeal.
[5]Singh v R [2020] NZCA 411 at [22].
Despite the fact that Re Solicitor‑General’s Reference (No 1 of 2020) was resolved in favour of the police, the applicant pursued an appeal to the Court of Appeal pursuant to the leave that had been given.
The Court of Appeal dismissed the appeal.[6] The Court rejected the applicant’s arguments to the effect that Re Solicitor‑General’s Reference (No 1 of 2020) was…

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 Singh v Police

Details

AGLC: Singh v Police [2021] NZSC 78
Case: [2021] NZSC 78
Decision Date: 2 July 2021

CaseChat Overview and Summary

In Singh v Police, the Supreme Court of New Zealand dismissed an application for leave to appeal by the applicant, Maninder Singh, who was convicted of driving with an alcohol concentration in his breath exceeding 400 mcg of alcohol per litre of breath. Singh initially appealed to the High Court, which dismissed his appeal. Subsequently, Singh applied to the Court of Appeal for leave to bring a second appeal, seeking to challenge the High Court's rejection of his arguments and to raise a new ground regarding the police's failure to comply with section 77(3A)(a) of the Land Transport Act 1998.

The Supreme Court considered two primary legal issues: whether Singh should be granted leave to appeal against the Court of Appeal's decision concerning the Block J issue and whether Singh should be granted leave to adduce evidence in support of his application. The Block J issue, which pertains to the interpretation of a procedure sheet used by police during breath testing, had not been resolved at the time of Singh's appeal. The Supreme Court had previously refused leave to appeal in a similar case, McKinney v New Zealand Police, indicating that it would not entertain appeals that challenge the Court of Appeal's resolution of the Block J issue. Despite the Block J issue being resolved in favour of the police, Singh pursued an appeal to the Court of Appeal, which was ultimately dismissed.

The Supreme Court declined to grant leave to appeal, reasoning that the criteria for leave to appeal were not met. The Court noted that Singh's arguments were not raised in the lower courts and were outside the scope of the leave granted by the Court of Appeal. Furthermore, the Court found that the new point regarding the procedure sheet was not properly presented and did not present a risk of a miscarriage of justice or a matter of general public importance. The Court also denied Singh's application to adduce evidence, finding it irrelevant to the appeal's issues.

Orders