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Singh v Police

Singh v Police

Case [2021] NZCA 91 25 March 2021

Statutory Interpretation

Jurisdiction

Admissibility of Evidence

Per Incuriam

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA175/2020
[2021] NZCA 91

BETWEEN	MANINDER SINGH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	12 February 2021
Court:	Kós P, French and Gilbert JJ
Counsel:	A J Haskett, Z E Reid and M J Mellin for Appellant C A Brook for Respondent
Judgment:	25 March 2021 at 9 am

JUDGMENT OF THE COURT

A The application to adduce further evidence is declined.
B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

At 11.50 pm on Tuesday 7 August 2018 police officers found the appellant, Mr Maninder Singh, asleep at the wheel of his van on Gadsby Road, South Auckland. The van was stationary, parked at an oblique angle across both kerb and carriageway, on a broken yellow line, in neutral, with its engine running. The officers removed the key from the ignition. Mr Singh smelt of alcohol, his eyes were glazed, his speech was slurred and he lapsed in and out of a stupor.
The constable conducted a breath test on Mr Singh, which indicated a breath alcohol level exceeding 400 mcg of alcohol per litre of breath. The constable then took Mr Singh to Manukau Police Station for an evidential breath test (EBT), which showed a result of 986 mcg of alcohol per litre of breath — almost four times the legal limit.
Mr Singh was subsequently convicted on one charge of driving with excess breath alcohol by Judge DJ Harvey in the District Court at Manukau.[1] He appealed both his conviction and the refusal to grant a discharge without conviction to the High Court. There were two stated grounds of appeal: first, that the constable lacked proper grounds to require Mr Singh to undergo an EBT, and secondly that Mr Singh should have been discharged without conviction. On 3 March 2020, Katz J dismissed the appeal.[2]
[1]New Zealand Police v Singh [2019] NZDC 10147.
[2]Singh v New Zealand Police [2020] NZHC 368.
Mr Singh then applied for leave to appeal to this Court. The grounds advanced were materially identical to those advanced before the High Court. The application for leave was decided on the papers. This Court declined leave on the two grounds presented.[3]
[3]Singh v R [2020] NZCA 411 [Leave judgment].
Leave was however granted on a third basis, not sought by the appellant. Between Mr Singh filing his leave application and the application being decided, the Court granted the Solicitor-General leave to refer the issue of whether the wording in the procedure sheet used by police after administering an EBT (the Block J wording) complied with ss 77(3) and (3A) of the Land Transport Act 1998 (the Act).[4] That wording seemingly had been used in Mr Singh’s case. Some District Court decisions had held the wording to be non-compliant, meaning EBT results were inadmissible in evidence.[5] Accordingly, and to preserve Mr Singh’s position, this Court noted:[6]

If the approach taken in the District…

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] NZCA 91
Case: [2021] NZCA 91
Decision Date: 25 March 2021 at 9 am

CaseChat Overview and Summary

Maninder Singh was found asleep at the wheel of his van, which was parked on a broken yellow line, in neutral, with the engine running. He was removed from the vehicle, and a breath test indicated he had a high level of alcohol in his system. He was subsequently convicted of driving with excess breath alcohol. Singh appealed against his conviction and the refusal to grant a discharge without conviction, but his appeal was dismissed. Singh then applied for leave to appeal to the Court of Appeal of New Zealand, which was declined. However, leave was granted on a third basis, not sought by the appellant. The Court of Appeal declined to adduce further evidence on appeal and dismissed the appeal. The Court held that the procedure sheet used by the police was compliant with the statutory requirements, and the appellant's argument that the decision was per incuriam was not within the leave granted. The Court held that more was required than just an argument that the prior decision was wrong, and that to be per incuriam, the decision must be wrong by reason of a fatal and fundamental omission. The Court held that the ratio of the decision concerned the formal compliance of wording used by police officers with the requirement in s 77 to give a warning in particular terms before an EBT result is admissible in evidence against a motorist. The Court held that the appellant's arguments did not meet the threshold for, and thereby engage, either the third or fourth exceptions to the principle that the Court will follow its own decisions. The Court held that reversal, if it is to occur, must be a matter for the Supreme Court.
The appeal is dismissed, and the application to adduce further evidence is declined.

Orders