Stone v The Queen

[2004] NZCA 152

IN THE COURT OF APPEAL OF NEW ZEALAND

CA122/04

THE QUEEN

v

ANAMARI MARGARET STONE

Hearing:21 June 2004

Coram:McGrath J
Hammond J
O'Regan J

Appearances:  W M Johnson for Applicant

A M Powell for Crown

Judgment:21 July 2004 

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]       This is an application for special leave to appeal to this Court against a decision of a High Court Judge dismissing the applicant’s appeal against conviction in the District Court.

[2]       On the night of 2 January 2003 Ms Stone was driving in Upper Hutt.  At around 11.05pm she was stopped by Sergeant Benge for an alleged speeding offence.  The applicant admitted recent alcohol consumption.  The first test administered, a passive breath test, displayed a failed result.  The Sergeant then requested that the applicant undergo a breath screening test, which also produced a failed reading.

[3]       The Sergeant then asked Ms Stone to accompany him to the police station for the purposes of undergoing an evidential breath test or a blood test or both.  The applicant was advised of her rights under s23 of the New Zealand Bill of Rights Act and signed a document acknowledging that advice.  However, she did not request to speak with a lawyer.

[4]       At the station, the applicant was required to undergo an evidential breath test.  The result card printed out by the approved testing device, an Intoxilyzer 5000 showed a breath alcohol level of 534 micrograms of alcohol per litre of breath.  The Sergeant showed Ms Stone the print-out and completed the advice of the positive evidential breath test form.  The applicant read and signed the form.  She chose not to elect to have a blood test.  The Sergeant subsequently requested and obtained a certificate of compliance in respect of the testing device.

[5]       On 16 June 2003, the applicant was convicted in the District Court at Upper Hutt under s56(1) of the Land Transport Act 1998 (“the Act”) of driving while her breath alcohol level exceeded 400 micrograms of alcohol per litre of breath.  She was sentenced to 70 hours of community work.

[6]       Ms Stone appealed against conviction only in the High Court.  The three grounds of appeal advanced by the applicant had been previously raised in the District Court.  The Court dismissed the appeal on 12 December 2003.

[7]       The applicant then sought leave in the High Court to appeal to this Court under s144 of the Summary Proceedings Act 1957.  That application was heard by France J on 16 March 2004.  The application focused on one of the grounds raised in the District and High Courts only.  The applicant challenged the sufficiency of the certificate of compliance, formulating four alleged questions of law namely:

(a)Do certificates of compliance issued pursuant to s75A of the Land Transport Act 1998 have to specifically refer to the Science Minister within the definition given of that person in s2 of the Act?

(b)Do certificates of compliance have to specifically state that the individual certificate is a true copy of the original within the body of the certificate, or can the affixing of a separate sticker not directly referring to the certificate suffice?

(c)Do signatories to such certificates or stickers have to be identifiable in the sense of having legible signatures?

(d)Do the provisions of s64(2) of the Transport Act 1998 cure any such issues?

[8]       Justice France dealt with each proposed question of law in turn.  On the question of whether the certificate must specifically refer to the Science Minister within the definition given in s2 of the Act, the Judge accepted that a question of law had been raised.  However, she concluded that the question was not one of the requisite importance to warrant leave being granted.  France J stated, agreeing with a previous decision of the High Court, that nothing turned on the wording of the provisions at issue.  The Judge then concluded that the applicant’s challenge to the certification of the certificate of compliance as a true copy of the original certificate did not disclose a question of law.  The issue of the legibility of the signatory to the certificate was also found to be a question of fact.  Finally, France J noted that the High Court had found it unnecessary to decide the issue relating to s64(2) of the Act but nonetheless observed that she could not see how the point raised any question of law.  Leave to appeal was therefore declined.

[9]       Ms Stone now seeks special leave from this Court to appeal against the High Court decision under s144(3) of the Summary Proceedings Act.  That section says:

(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 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.

[10]     The grounds put forward by Ms Stone in support of her application are substantially similar to those canvassed in the High Court.  However, the applicant did concede that the third question raised, of the legibility of signatures on the certificate, was a mixed question of fact and law.  It was argued that the signatory should be an identifiable authorised person otherwise an illegible signature may arguably not comply with s75A of the Act.  Ms Stone argued that the questions raised by her appeal were of general public importance because s75A of the Act takes away a possible defence against a charge of excessive breath alcohol based on the malfunctioning of the evidential breath testing device.  For this reason it was submitted that the form of the certificates issued pursuant to that section was of importance.

[11]     In the High Court, France J referred to the leading case on s144 of the Summary Proceedings Act R v Slater [1997] 1 NZLR 211 (CA). In R v Slater at 215 this Court said:

Section 144 was not intended to provide a second tier of appeal from a decision of the District Court in proceedings under the Summary Proceedings Act. Neither the determination of what comprised a question of law, nor the question of whether that point of law raised a question of general or public importance, was to be diluted…

[12]     As France J noted, R v Slater makes it clear that the requirement in s144 that a question of law of general or public importance be identified is a strict one.  We agree with France J that for the reasons given in the High Court the grounds of appeal disclose no such question.  There is no question of law of general or public importance which requires determination in this Court.  Ms Stone’s application is therefore dismissed.

Solicitors:
Crown Law Office, Wellington