Singh v R
[2020] NZCA 411
•11 September 2020 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA175/2020 [2020] NZCA 411 |
| BETWEEN | MANINDER SINGH |
| AND | THE QUEEN |
| Court: | Courtney, Wylie and Muir JJ |
Counsel: | M J Mellin for Applicant |
Judgment: | 11 September 2020 at 11.30 am |
JUDGMENT OF THE COURT
ALeave to bring a second appeal is granted in relation to the application of s 77(3)(a) and (3A) of the Land Transport Act 1998 to Mr Singh’s circumstances.
BIn all other respects, leave to bring a second appeal is declined.
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REASONS OF THE COURT
(Given by Wylie J)
Introduction
Mr Singh was convicted following a judge-alone trial on one charge of driving with excess breath alcohol.[1] His application for a discharge without conviction was declined. He was fined $900, ordered to pay $130 in court costs and disqualified from driving for six months.[2] He appealed both the conviction and the refusal of the discharge to the High Court. On 3 March 2020, Katz J dismissed his appeal.[3]
[1]Police v Singh DC Manukau CRI-2018-092-9594, 7 March 2019.
[2]Police v Singh [2019] NZDC 10147.
[3]Singh v Police [2020] NZHC 368.
Mr Singh seeks to challenge both the conviction and the refusal to discharge him without conviction. He seeks leave to bring a second appeal pursuant to ss 237(1) and 253(1) of the Criminal Procedure Act 2011. In a minute dated 24 June 2020, Goddard J ruled that the application for leave should be determined on the papers and separately from the proposed appeal.[4]
[4]Singh v Police CA175/2020, 24 June 2020.
This Court must decline leave for a second appeal unless it is satisfied that either the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[5] The threshold is high.[6]
Factual background
[5]Criminal Procedure Act 2011, ss 237(2) and 253(3).
[6]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].
The factual background is summarised in Katz J’s judgment. We adopt her summary as follows.[7]
[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] … 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 that the left indicator was flashing, the headlights were on, the key was in the ignition, and the engine was running. In the driver's seat was Mr Singh. He appeared to be asleep. The constable opened the van door, showed his ID, and removed the key from the ignition. He spoke to Mr Singh and took his particulars. He noted that there was a smell of alcohol. Mr Singh had glazed eyes, slurred speech and seemed to be falling in and out of sleep. The constable conducted a breath test, which indicated a breath alcohol of more than 400mcg of alcohol per litre of breath. The constable then took Mr Singh to Manukau Police Station for an evidential breath test, which showed a result of 986mcg/L.
[7] Mr Singh did not give evidence at trial. Subsequently, however, he deposed in an affidavit provided for sentencing purposes that he had been drinking at a friend's house. He said that he argued with his friend and made the poor decision to drive away in his company van. He says he only drove for a short time, then found a safe place to park.
[8] The company van Mr Singh was driving included a sophisticated satellite tracking system. That system recorded not only the vehicle's position, but also its speed, travel time, and when the ignition was turned on or off. These records revealed that the van was turned on at 8.36 pm, when it left Mr Singh's friend's address. Four minutes later the vehicle stopped at the location where the constable found Mr Singh. The vehicle remained stationary at that location, with the ignition on, for approximately three hours. This corroborates Mr Singh's account that he only drove for a short time.
The decisions below
[7]Singh v Police, above n 3.
At trial, the main issue was whether the police officer had proper grounds to administer the initial breath screening test. Section 68(1) of the Land Transport Act 1998(the Act) relevantly provides that an officer may require either:
(a)a driver of, or a person attempting to drive, a motor vehicle on a road, or;
(b)a person whom the officer has good cause to suspect has recently committed an offence against the Act that involves the driving of a motor vehicle,
to undergo a breath screening test without delay.
In the District Court, Judge DJ Harvey was satisfied that, given the circumstances in which he came upon Mr Singh, the officer could require Mr Singh to undergo a breath screening test both as the driver of the motor vehicle and as a person who had recently committed an offence against the Act that involved the driving of a motor vehicle. He therefore found that the subsequent breath alcohol test results were admissible and conclusive proof that Mr Singh was guilty of the offence of driving with excess breath alcohol, contrary to s 56(1) of the Act.
In considering the application for a discharge without conviction, Judge Harvey assessed the gravity of Mr Singh’s offending as moderate. He considered that, on the evidence before him, it was unclear whether or not Mr Singh would lose his job if he were to be disqualified. He accepted that a conviction might cause difficulties for Mr Singh in terms of his immigration status but again, on the evidence, concluded that those difficulties were not insurmountable. He found that the potential consequences of the conviction for Mr Singh were not out of all proportion to the gravity of his offending.
Before Katz J, it was inter alia argued that, on the GPS evidence, the vehicle had been stationary for some time and that the officer could not have had good cause to suspect that Mr Singh had recently committed a relevant offence. The Judge held that, on the information available to him at the time, the officer had clear grounds to suspect that Mr Singh had recently committed a driving offence. She rejected the submission that, when assessing whether the officer had good cause to suspect, the Court should also have regard to the GPS data that came to light later.
In regard to Judge Harvey’s decision declining to grant Mr Singh a discharge without conviction, Katz J rejected the submission that the Judge had overstated the seriousness of the offending. She took into account fresh evidence that Mr Singh had been issued with a deportation liability notice subsequent to the hearing before Judge Harvey, and that he had unsuccessfully appealed to the Immigration and Protection Tribunal. The Judge considered that the immigration consequences were best left to the immigration authorities and that no departure from this usual practice was warranted.
Application for leave
The GPS data defence
For Mr Singh it was argued that the GPS “factual twist” raises an important question of law, of broad application beyond the circumstances of this case.
We disagree. The GPS data was not extracted from the device installed in Mr Singh’s vehicle until some time after the night in question. It was impossible for the officer to take the information into account at the time, for the simple reason that it was not then available to him or anyone else. Section 68(1)(b) of the Act requires an officer to consider the situation before him or her and assess whether there is then good cause to suspect an offence has recently been committed. GPS data that is not accessible at the time cannot retrospectively have any impact on the validity of the officer’s assessment at the time.
The Court’s perception of the strength of the issues that might be raised on a second appeal is relevant to determining whether an appeal is of general or public importance.[8] Here, any argument as to the relevance of the GPS data appears to us to be extremely weak. The argument has failed in both the District and High Courts. In our view it falls into the class of defences castigated by the Supreme Court as being technical and unmeritorious.[9]
Leave to appeal the refusal to discharge without conviction
[8]Jones v Wellington City Council [2017] NZCA 261 at [19].
[9]Alywin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
The application for leave also raises the immigration consequences of the conviction for Mr Singh.
As Katz J noted, the Courts have been reluctant to consider immigration consequences in discharge without conviction applications. The traditional approach has been to leave immigration matters to the immigration authorities.[10]
[10]See, for example,\ Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14]; and Ho v R [2016] NZCA 229 at [15].
Both Judge Harvey and Katz J applied this approach. Mr Singh cannot suggest that the Courts below have applied a wrong test or failed to follow applicable authorities. His complaint is essentially factual in nature — that notwithstanding accepted authorities, he should have been granted a discharge because of the immigration consequences for him of a conviction. This does not raise any question of law of general or public importance. The courts have repeatedly said that driving with excess breath alcohol is an inherently serious offence.[11] Such conduct must be viewed as dangerous and socially unacceptable. Discharges without conviction are rarely granted. There is no possibility of demonstrating error by the Courts below. We decline to grant leave to appeal in respect of this issue.
The s 77(3)(a) and (3A) defence
[11] New Zealand Law Society v Stanley [2020] NZSC 83 at [72] and [102]; Alywin v Police, above n 9, at [17].
It was also argued for Mr Singh that s 77(3)(a) and (3A) of the Act was not complied with. Relevantly, s 77(3) provides that an enforcement officer must, without delay, advise a person who underwent a positive evidential breath test of the positive result, and also of the person’s right to undergo a blood test. The person must be advised that, if he or she does not request a blood test, the positive evidential breath test “could of itself be conclusive evidence to lead to that person’s conviction for an offence against [the] Act”.[12] The standard police Breath and Blood Alcohol Procedure Sheet (the Procedure Sheet) used by the police in Mr Singh’s case, which was admitted as an exhibit at trial, contained the following annotation:
If you do not within 10 minutes request a blood test, the evidential breath test you have just undergone could, of itself, be conclusive evidence in a prosecution against you under the Land Transport Act 1998.
[12]Land Transport Act, s 77(3A)(a) (emphasis added).
There is no evidence as to the advice given to Mr Singh but we accept that leave could be sought to adduce further evidence in this regard if leave to bring a second appeal is granted.
In recent decisions, the District Court has held that any advice given in the terms set out in the Procedure Sheet is defective, because there is a difference between advising a person that the positive evidential breath result could of itself be conclusive evidence in a prosecution, and advising a person that the result could of itself be conclusive evidence leading to a conviction.[13] Unless the advice is given in terms of the section, the evidential breath test is inadmissible — s 77(3).
[13]See, for example, New Zealand Police v Stewart [2020] NZDC 11392; New Zealand Police v Taylor [2020] NZDC 12166; and New Zealand Police v Koliandr [2019] NZDC 11473.
This potential defence was not raised before Judge Harvey nor before Katz J and neither dealt with it. The applicant seeks to raise it as a fresh ground on any second appeal.
Applicants for leave to bring a second appeal are usually restricted to the grounds of appeal advanced in the first appellate court. A second appellate court will only allow an applicant to advance new grounds on a second appeal if there is a real possibility that those grounds might demonstrate that a miscarriage of justice occurred at the trial, which went uncorrected on the first appeal.[14]
[14]Pavitt v R [2005] NZSC 24 at [4].
We consider that there is such a possibility in this case. On 5 August 2020, this Court granted an application by the Solicitor-General for leave to refer to this Court the question of law arising from the various District Court cases — namely whether there has been non-compliance with s 77(3)(a) and (3A) of the Act by the wording used in the Procedure Sheet.[15]
[15]Re Solicitor-General [2020] NZCA 330.
If the approach taken in the District Court is upheld in this Court, there would likely be a miscarriage of justice in Mr Singh’s case, assuming that the advice given was consistent with the Procedure Sheet. Accordingly, we consider that it is appropriate to grant Mr Singh leave to bring a second appeal in regard to this issue.
Result
Leave to bring a second appeal is granted in relation to the application of s 77(3)(a) and (3A) of the Land Transport Act 1998 to Mr Singh’s circumstances.
In all other respects, leave to bring a second appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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