Singleton v Police - [2012] NZCA 618

IN THE COURT OF APPEAL OF NEW ZEALAND

CA548/2012
[2012] NZCA 618

BETWEEN SHAUN GEORGE SINGLETON
Applicant

AND NEW ZEALAND POLICE
Respondent

Court: Randerson, Harrison and Stevens JJ

Counsel: Z K Mohamed for Applicant
J E Mildenhall for Respondent

Judgment: 21 December 2012 at 10:00am

(On the papers)

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BThe applicant must pay to the respondent costs for a standard application on a Band A basis for leave to appeal and usual disbursements.
____________________________________________________________________

REASONS

(Given by Randerson J)

The applicant was convicted following a defended hearing in the District Court on 23 April 2012 of one charge of driving with excess breath alcohol, contrary to s 56(1) of the Land Transport Act 1998. His appeal against conviction was dismissed by Clifford J on 1 June 2012.[1] An application for leave to appeal was subsequently declined by Priestley J on 13 August 2012.[2]
[1]Singleton v New Zealand Police [2012] NZHC 1220.
[2]Singleton v New Zealand Police [2012] NZHC 2063.
The applicant now seeks special leave to appeal under s 144 of the Summary Proceedings Act 1957 to appeal to this Court on seven questions which, it is submitted, constitute questions of law. Randerson J earlier determined under s 392A of the Crimes Act 1961 that the application be determined on the papers.
Section 144 provides:
144 Appeal to Court of Appeal
(1)Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 or against any determination of the High Court on a question of law arising in any general appeal:
Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2)A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
(3)Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal…

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 Singleton v Police

Details

AGLC: Singleton v Police [2012] NZCA 618
Case: [2012] NZCA 618
Decision Date: 21 December 2012

CaseChat Overview and Summary

Shaun Singleton was convicted in the District Court for driving with excess breath alcohol. His appeal against conviction was dismissed by the High Court, and his subsequent application for leave to appeal to the Court of Appeal was also declined. Singleton now seeks special leave to appeal to this Court on seven questions that he submits are questions of law. These questions are primarily concerned with the admissibility of certain evidence presented by the arresting officer, including the officer's reliance on a checklist to refresh his memory, the identification of the breath testing device, and the duty of defence counsel to assist the prosecution.

The Court of Appeal determined that the first two questions, which concern the admissibility of the officer's evidence, do raise questions of law. However, the Court found that these questions lack a reasonable prospect of success. The arresting officer was permitted to refresh his memory from the checklist he created at the time, as per section 90(5) of the Evidence Act 2006. The officer's evidence was admissible under sections 7 and 8 of the Evidence Act, and it would be unexpected for Singleton to now challenge the non-production of the checklist when his counsel had previously objected to its production. Similarly, the officer's evidence about the breath testing device was admissible, as the certificate of compliance was conclusive proof of the matters stated in it.

The Court found that the remaining questions do not raise questions of law but rather procedural or process matters. Furthermore, the High Court Judge was entitled to examine the checklist in order to determine the admissibility issue raised. The Court also noted that defence counsel is not obliged to assist the prosecution, but failure to challenge the evidence during the hearing may have adverse consequences if a defendant seeks to raise such points later.

The Court of Appeal dismissed the application for special leave to appeal, finding that the points Singleton wishes to raise have no prospect of success or do not warrant a second appeal. Singleton must pay costs to the respondent as for a standard application on a Band A basis with usual disbursements.

Orders