Singleton v Police

[2012] NZHC 925

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-131

CRI-2012-404-137 [2012] NZHC 925

BETWEEN  SHAUN GEORGE SINGLETON Appellant

ANDNEW ZEALAND POLICE Respondent

Judgment:      7 May 2012 (on the papers)

JUDGMENT OF BREWER J

[Appeal against refusal to grant deferment of disqualification pending appeal]

SOLICITORS

Zahir Mohamed (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

SINGLETON V POLICE HC AK CRI-2012-404-131 [7 May 2012]

[1]      On 23 April 2012 in the District Court at Manukau, Judge Andrée Wiltens convicted the appellant on one charge of driving with excess breath alcohol.

[2]      On the same day Mr Mohamed for the appellant filed a notice of general appeal. The grounds of appeal are not particularly precise:

(a)       Having regard to the law applicable and the evidence on record, the decision is wrong.

(c)       Such further or other grounds as may appear proper upon perusal and consideration of the notes of evidence.

[3]      Also on that day Mr Mohamed applied to the District Court Judge for an order  pursuant  to  s 107  of  the  Land  Transport  Act  1998  that  the  period  of disqualification from holding or obtaining a driver’s licence (being one of the consequences attendant upon the conviction) be deferred pending the final determination of the appeal against conviction.

[4]      The  District  Court  Judge,  having  been  unable  to  discern  anything  in particular from the grounds of appeal, declined the application.

[5]      On 26 April 2012, Mr Mohamed filed a notice of appeal against the District Court Judge’s refusal to defer the disqualification.  That is the matter with which I now deal.

[6]      Section 107(2A) of the Land Transport Act 1998 provides the jurisdiction to consider the appeal in respect of the deferment of disqualification.  My jurisdiction, like the District Court Judge’s jurisdiction, is not to rubberstamp the deferment. Although  there  is,  in  practical  terms,  a  presumption  in  favour  of  granting applications for deferment, the discretion is to be judicially, and not unthinkingly, exercised.  This is how the point was described by District Court Judge Moore in

Police v Williams,[1] and I agree with him.

[1] Police v Williams [1995] DCR 1023 at 1025-1026.

[7]      In my view, Judge Wiltens was entitled to decline to defer commencement of the disqualification period on the scant material before him.  However, in the notice

of appeal on the deferment refusal filed in this Court the appellant sets out his

grounds for appeal against conviction in much greater detail.  The one I find to be cogent is as follows:

(b)      I was stopped at a checkpoint operation.  There was no driving fault.

My breath alcohol level allegedly was 448 micrograms of alcohol per litre of breath.  The Judge convicted me on insufficient and/or

inadmissible evidence.  There was no evidence of compliance with

the provisions of the Land Transport (Breath Tests) Notice.  There was no admissible evidence of the result of the alleged evidential breath test.   The Judge erred as to the application of the Aylwin decision.

[8]      The period of disqualification is six months commencing 23 April 2012.  The appeal  against conviction is unlikely to be heard in this Court for at  least two months.  The appellant has now provided sufficient details of his grounds for appeal against conviction that I can conclude that this is not a case where the appeal is brought in dubious faith or on non-arguable points of law.

[9]      Ms Lummis, on behalf of the respondent, has advised that the Crown has no issue with deferment of disqualification pending the outcome of the appeal.

[10]     Accordingly, Mr Singleton’s appeal against the District Court’s refusal on

24 April 2012 to defer his sentence of disqualification is allowed and Mr Singleton is permitted to drive until determination of his appeal against conviction in this Court.

Brewer J