Sutton v Police

[2012] NZHC 1597

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-98 [2012] NZHC 1597

BETWEEN  CRAIG CHARLES SUTTON Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 July 2012

Counsel:         A Trenwith for Applicant

K Wendt for Respondent

Judgment:      5 July 2012

(ORAL) JUDGMENT OF POTTER J

on application for leave to appeal

Solicitors:           Meredith Connell, Auckland –  [email protected]

P Winkler, Auckland –  [email protected]

SUTTON V NEW ZEALAND POLICE HC AK CRI-2012-404-98 [5 July 2012]

Introduction

[1]      Mr Sutton seeks leave to appeal to the Court of Appeal from one of the determinations in my judgment of 21 June 2012 (the judgment).1   He also seeks deferment of the six months period of disqualification from driving, pending appeal to the Court of Appeal.

[2]      In the judgment I dismissed an appeal by Mr Sutton from a judgment of the

District Court which convicted him of driving with excess breath alcohol under s

56(1) of the Land Transport Act 1998 (the Act).  The finding in respect of which Mr Sutton seeks leave to appeal is that in terms of s 75A(4) of the Act he failed to prove to the contrary that the certification on the document purporting to be a certified copy of a certificate of compliance, was valid.

[3]      The question on which Mr Sutton seeks leave to appeal is:

How should the requirement of “proof to the contrary” be applied in drink driving cases, particularly given s 25(c) of the New Zealand Bill of Rights Act?

Jurisdiction

[4]      The  application  for  leave  is  made  under  s  144(1)  of  the  Summary Proceedings Act 1957 which provides that, with the leave of the High Court, a party may appeal to the Court of Appeal against any determination of the High Court on a question of law arising on a general appeal.

[5]      Section 144(1) provides that the High Court may grant leave if in its opinion the question of law involved in the appeal is one which by reason of its general and public importance, or for any other reason, ought to be submitted to the Court of

Appeal for its decision.

1      Sutton v New Zealand Police [2012] NZHC 1398, 21 June 2012.

[6]      The principles applying to an application for leave to appeal are well defined and are not in dispute. They are set out in R v Slater.2   There must be:

(a)      A question of law.

(b)The question must be one which by reason of its general and public importance or for any other reason ought to be submitted to the Court of Appeal.

(c)      This Court must be of the opinion that it ought to be so submitted.

[7]      As was stated by Thomas J in R v Slater, delivering the judgment of the Court of Appeal:3

Section 144 was not intended to provide a second tier of appeal from decisions of the District Court and proceedings under the Summary Proceedings Act.

[8]      The conditions in subs (2) and (3) of s 144 have to be met before leave to appeal may be granted.

The judgment

[9]      At issue in both the District Court and on appeal to this Court was s 75A(4)

of the Act. It provides:

(4)       In the absence of proof to the contrary, a document purporting to be a certificate of compliance or a certified copy of a certificate of compliance—

(a)      must be treated as such a certificate or certified copy; and

(b)      is conclusive evidence of the sufficiency of the authority of the person who signed the document.

[10]     I held that the certificate of compliance in this case was sufficient on its face and included evidence as to the authority of the person who signed it.4    I noted that

2      R v Slater [1997] 1 NZLR 211.

3      At 215.

4      At [62] to [63] of the judgment.

under s 75A(4)(b) the certificate is conclusive evidence of the sufficiency of the authority of that signatory.

[11]     I then considered the certificate by Mr Behrent who certified the certificate of compliance as a true copy.  I referred to the instrument of authorisation disclosed by the police, ostensibly in support of the authority of Mr Behrent to so certify.  It bore no relation to the certification on the certificate of compliance or to the certifier, Mr Behrent.  I noted that no evidence of the authority of the certifier was required under s  75A and  that  the  instrument  of  authorisation  might  therefore  be  regarded  as irrelevant to the certificate of compliance and its certification.  I said that while the instrument of authorisation might suggest some doubt as to the authority of the person who signed the certificate, namely Mr Behrent, it fell well short of providing proof to the contrary in terms of s 75A(4).  I held that this ground of appeal must fail.

Submissions

[12]     Mr Trenwith for the applicant identified that the issue is the meaning of “proof to the contrary” in the context of the certification provisions of the Act.  He referred to the judgment of Speight J in Cross v Ministry of Transport,5   a case referred to in the judgment,6  that strict compliance is required in respect of hearsay evidence.  He noted that the police are always in a position to provide supplementary evidence and could have done so here.  In that context he referred to Hilton v Police7 and Dodgson v Police,8 which concerned medical certificates under the Act.

[13]     He submitted that when there is a doubt raised, it must be resolved in favour of the applicant.  He referred to the Supreme Court judgment in Hansen v R,9  which concerned the presumption under s 6(6) of the Misuse of Drugs Act.  He submitted that the gravitas involved in that presumption was more significant than in relation to

the presumption under s 75A(4) because it concerned an element of the offence of

5      Cross v Ministry of Transport HC Auckland AP62/88, 5 September 1988.

6 At [60].

7      Hilton v Police HC Wellington AP105/01, 23 August 2001.

8      Dodgson v Police HC Wellington CRI-2010-485-99, 30 November 2010.

9      Hansen v R [2007] NZSC 7; [2007] 3 NZLR 1.

possession for supply under s 6(6) of the Misuse of Drugs Act, whereas under s 75A

only admissibility of evidence is involved.

[14]     He submitted that the standard of proof in this case would be at a lesser or lower level, and again referred to the ability of the police always to produce further evidence, including the original of the certificate of compliance, in order to satisfy the requirements for proof of the offence under s 56(1) of the Act.

[15]     He submitted that the presumption of innocence under s 25(c) of the New Zealand Bill of Rights Act is a “relevant factor” in the overall consideration of this issue and the interpretation of the phrase “in the absence of proof to the contrary” in the context of the Act.

[16]     Ms Wendt for the Crown submitted that whether there is proof to the contrary is always a factual matter to be determined by the Court on a case by case basis.  The simple point here, she submitted, is that the onus of proof under s 75A(4) rested on the applicant and he failed to discharge it.

[17]     In relation to the words “absence of proof to the contrary”, she referred to various passages from the judgment in Hansen v R and also to the application of similar provisions under s 75A of the Act in the cases of Brown v New Zealand Police10  and Dodgson v Police.11    She also referred to the comments of the Supreme Court in Aylwin v Police12  that there is an interest in deterring technical and unmeritorious defences.  She submitted that this is what the provision in s 75A(4) is aimed at.

[18]     She submitted there is no question of law having the requisite degree of public importance and there is no reasonable prospect of the applicant’s arguments

succeeding in the Court of Appeal.

10     Brown v Police HC Auckland CRI-2006-404-124, 8 December 2006.

11     Dodgson v Police.

12     Aylwin v Police [2008] NZSC 113; [2009] 2 NZLR 1 at [16].

Discussion

[19]     The applicant referred in written submissions to Hilton v Police where the relevant  phrase  was  considered.  It  was  submitted that  this  decision  was  over  a decade  ago  and  that  although  the  issue  of  reverse  onus  was  addressed  by  the Supreme Court in Hansen v R, the Court’s analysis was based on the presumption for supply under the Misuse of Drugs Act where the defendant was best placed to provide the requisite evidence.

[20]     I do not consider that argument assists the applicant.  Section 75A(4) places the burden of proof to the contrary fairly and squarely on the applicant.   How he might discharge that onus is a matter to be determined on a case by case basis.  That s 75A(4) addresses an item of evidence is a matter that will be relevant for the Court in assessing the evidence adduced by way of proof to the contrary on the balance of probabilities.

[21]     The authorities referred to by the Crown, particularly Hansen v R, make clear that in a statutory regime such as that which applies to drink driving offences under the Act, the burden of proof is as defined by the relevant statute. As the Chief Justice stated in Hansen v R:13

Who carries the legal burden of proof is determined by substantive law. Who   carries   the   evidential   burden   is   determined   by   the   adjectival (procedural) law of evidence.

[22]     Under s 75A(4) the burden of proof is determined by the statutory provision. A provision that requires proof to the contrary imposes a persuasive burden on the party who carries the onus of proof. As Tipping J said in Hansen v R:14

The composite expression “until the contrary is proved” has a clear, simple and  well-understood legal meaning.    It  places  a persuasive onus on the accused, not just an evidential onus. … To give the expression “until the contrary is proved” the meaning “until the contrary is tested” would be to make it well-nigh meaningless.

13     Hansen v R.

14 At [95].

[23]     Section 4 of the New Zealand Bill of Rights Act does not permit the Court to decline to apply a statutory provision under the Bill of Rights Act.  Therefore even if by s 75A(4), the imposition on the applicant of the onus of establishing proof to the contrary were to be held under s 5 of the Bill of Rights Act to be an unjustified limitation on the presumption of innocence under s 25(c), because s 5 is subject to s 4, the requirement to apply s 75A(4) must prevail.  This principle is confirmed in Hansen v R.

[24]     I specifically make no finding as to whether the limitation in s 75A(4) is demonstrably justified in terms of s 5 of the Bill of Rights Act.  It is unnecessary that I do so, given the provisions of s 4.

Conclusion

[25]     For these reasons I conclude that the question posed by the applicant involves no question of law of general or public importance.  The meaning and interpretation of provisions such as “until the contrary is proved” and “in the absence of proof to the contrary”, have been exhaustively considered and determined by the Courts.  No question of law or public importance arises.

[26]     The application for leave is therefore dismissed.

Deferment

[27]     Counsel  for Mr  Sutton  then addressed  the issue of deferment  and  made application under s 107 of the Act for the deferment of the disqualification period pending application being made to the Court of Appeal for special leave to appeal.

[28]     Section 107(4) is an unhappily worded section.  It provides:

(4)       If an application is made to the Court of Appeal for leave to appeal to that Court under a sentence of a District Court or the High Court that is or includes an order for disqualification, the High Court may, if  it  thinks  fit,  defer  the  operation  of  the  order  pending  the application for leave to appeal and, if leave is granted, pending the determination of the appeal.

[29]     On the face of it, this Court has jurisdiction to defer the operation of an order for disqualification only if an application is made to the Court of Appeal for leave to appeal to that Court.

[30]     Mr Trenwith urged a purposive interpretation such that the section should be read:

If an application is made …for leave to appeal to the Court of Appeal against a sentence of the District Court or the High Court that is or includes an order of disqualification the High Court may, if it thinks fit, defer the operation of the order pending the application for leave to appeal and if leave is granted [by the Court of Appeal] pending the determination of the appeal.

[31]     I accept that such an interpretation is more meaningful and makes more sense than s 107(4) as it is written.  However, even adopting the purposive interpretation Mr Trenwith advances, in the circumstances of this application I nevertheless decline the application to defer the order for disqualification.  This decision is one that falls within the discretion of the Court because s 107(4) confers an authority to defer if this Court thinks fit.

[32]     I take into account my conclusion that the appeal lacks merit and cannot, I consider, succeed in the Court of Appeal.   I also take into account that there is absolutely no evidence before this Court as to the circumstances of the applicant that suggests there is hardship or any other consideration relevant to the exercise of the Court’s discretion.

[33]     I bear in mind that if the applicant were successful in obtaining special leave to appeal to the Court of Appeal and then was successful in his appeal, he would effectively be denied the fruits, or most of the fruits, of the judgment because he will in the meantime have served the period of disqualification, or most of it.

[34]     But  in  the  circumstances  of  this  case  I  do  not  consider  that  deferral  is justified.  The applicant has now had two Courts determine the issues he raised and, as I have stated, I do not consider the exercise of a further right of appeal is likely to succeed.  Deferment is therefore declined.

Result

[35]     The application for leave to appeal is dismissed.

[36]     The application for deferral of the order for disqualification is dismissed.