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Singh v Police

Singh v Police

Case [2020] NZHC 368 3 March 2020

Appeal

Driving Under Influence

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000416

[2020] NZHC 368

BETWEEN
MANINDER SINGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 February 2020

Counsel:

M J Mellin for appellant C D Piho for respondent

Judgment:

3 March 2020

JUDGMENT OF KATZ J

[Conviction and sentence appeal]

This judgment was delivered by me on 3 March 2020 at 3:30pm

Registrar/Deputy Registrar

Solicitors: Kayes Fletcher Walker Ltd, Office of the Crown Solicitor, Manukau Counsel: M J Mellin, Barrister, Manukau

SINGH v NEW ZEALAND POLICE [2020] NZHC 368 [3 March 2020]

Introduction

[1] Mr Singh appeals his conviction and sentence on a charge of driving with excess breath alcohol.1 He was found guilty by Judge David J Harvey in the District Court at Manukau, following which he was disqualified from driving for six months and fined $1,030.2

[2]The key issues raised by Mr Singh’s appeal are:

(a)whether the Judge erred in finding that the police officer was justified in administering a breath alcohol test;3 and

(b)(if the conviction is not set aside on the basis of this alleged error) whether the Judge erred in not discharging Mr Singh without conviction.4

[3] Mr Singh seeks leave to file an updating affidavit for the purposes of the appeal. The Crown did not oppose admission of that evidence. I am satisfied that it is credible, fresh, and relevant to the safety of the convictions and should therefore be admitted.5

[4] Mr Singh seeks an extension of time for the appeal to be brought. The extension of time is sought on the basis that Mr Singh has limited financial resources and had to focus on his immigration appeal first. Given the importance of this appeal to Mr Singh, and his reasons for delay in filing, I am satisfied that it is in the interests of justice that an extension of time be granted.

1      Land Transport Act 1998, s 56(1). Maximum penalty three months’ imprisonment and a fine not exceeding $4,500.
2      New Zealand Police v Singh DC Manukau CRI-2018-092-009594, 7 March 2019; New Zealand Police v Singh [2019] NZDC 10147, the conviction and sentencing respectively.
3      Obviously, if he was not, the results of the test would likely be inadmissible.
4      Sentencing Act 2002, s 107.
5      Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

Background

[5] Mr Singh is an Indian national. He arrived in New Zealand in 2014. He is currently in New Zealand on a work visa valid until 10 April 2020. He would like to renew his visa and, in the longer term, seek permanent residence in New Zealand.

[6] The facts of Mr Singh’s offending are as follows. Around 11.50 pm on 7 August 2018, a police constable came upon a van that was unusually positioned on the side of a road in South Auckland. It was parked half on the road and half on the verge, on yellow lines. The constable gave evidence…

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 [2020] NZHC 368
Case: [2020] NZHC 368
Decision Date: 3 March 2020

CaseChat Overview and Summary

Maninder Singh appeals his conviction and sentence for driving with excess breath alcohol, as charged under the Land Transport Act 1998. The appeal concerns two main issues: whether the police officer was justified in administering a breath alcohol test, and if not, whether the District Court Judge should have discharged Mr Singh without conviction. Singh argues that the police officer did not have proper grounds to administer the breath test, making the test results inadmissible. The High Court, however, found that the officer had good cause to suspect Singh had committed an offence involving the driving of a motor vehicle, thereby justifying the breath test. Consequently, the conviction was upheld.

Singh also challenges the District Court Judge’s decision not to discharge him without conviction. Under the Sentencing Act 2002, a court may discharge an offender without conviction if it finds the consequences of conviction to be disproportionate to the gravity of the offending. The High Court examined whether deportation, a potential consequence of Singh’s conviction, would be out of proportion to the gravity of his offending. The Court noted that while deportation might cause Singh to lose his current visa and the opportunity to apply for future visas, it did not result in the breakup of a family unit, nor were Singh’s personal circumstances exceptional. Given that deportation is a consequence determined by immigration authorities, the Court held that it was not appropriate to intervene. Thus, the appeal against the refusal to grant a discharge without conviction was also dismissed.

Orders