The Queen v Livingston - [2000] NZCA 234

IN THE COURT OF APPEAL OF NEW ZEALAND

CA232/00
CA233/00

THE QUEEN

JOSEPH PETER LIVINGSTON

SHANE WILLIAM KENNER

Hearing:	13 September 2000
Coram:	Gault J Keith J Blanchard J Tipping J McGrath J
Appearances:	W M Johnson and I N Sylvander for Appellants C L Mander for Crown
Judgment:	12 October 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

These applications for leave to appeal involve various issues which arise when blood or breath alcohol charges are tried before a Judge and jury. Our ultimate conclusion is that at this pre-trial stage we have no jurisdiction to decide the applications themselves. We will nevertheless offer guidance on the primary points arising, after an examination of the statutory regime.
The appellants, Messrs Livingston and Kenner, are each charged under s56 of the Land Transport Act 1998 with driving while the proportion of alcohol in their breath, as ascertained by an evidential breath test subsequently undergone by them, exceeded 400 micrograms of alcohol per litre of breath. They both had at least two similar previous convictions and, if convicted as charged, they would have committed an indictable offence rendering them liable to a maximum penalty of 2 years imprisonment or a fine of $6000. First and second breath or blood alcohol offenders commit summary offences only, for which the maximum penalty is 3 months imprisonment or a fine of $4500.
When introducing the more serious category of offending, Parliament deliberately made the offence concerned indictable and accordingly gave those charged a right to elect trial by jury. A number of problems derive from the fact that in indictable cases of this kind, where trial by jury has been elected, the jury determines all matters of fact, and the Judge all matters of law. In summary cases the Judge is of course responsible for deciding all matters, both of fact and law. The overriding issue is to determine which aspects of the blood and breath alcohol regime are matters of fact for the jury, and which are matters of law, and what happens if an issue is one of mixed fact and law.
The legislation gives no guidance; albeit in indictable cases Parliament must have intended the jury to have some meaningful fact-finding role, otherwise there would have been no point in making such cases indictable, save only to preserve the general rule that offences carrying a maximum penalty of more than 3 months imprisonment involve a right of trial by jury.

Legal ingredients

Before examining the rulings made in the District Court in the present case, it is useful to consider the legal ingredients of an offence under s56(1):
56 CONTRAVENTION OF SPECIFIED BREATH OR BLOOD-ALCOHOL LIMIT-
(1) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of…

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 The Queen v Livingston

Details

AGLC: The Queen v Livingston [2000] NZCA 234
Case: [2000] NZCA 234
Decision Date: 12 October 2000

CaseChat Overview and Summary

The Queen v Livingston was a case heard before the court, where the defendants, Kenner and Livingston, sought leave to appeal against the Judge's directions. The central issue was whether the court had jurisdiction to grant such leave, specifically in relation to the admissibility of evidence under section 344A of the Crimes Act 1961. The defendants contested the Judge's directions, particularly paragraphs 1(ii) and 2, arguing that the Judge's decision did not pertain to the admissibility of evidence, thus questioning the applicability of section 379A(1)(aa) of the Crimes Act.

The court examined the statutory framework governing appeals in criminal cases, noting the specific provisions for appeals against conviction, questions of law, and pre-trial orders. It was determined that the right to appeal from the Judge's directions, if any, would be found under section 379A, specifically section 379A(1)(aa), which pertains to orders under section 344A. However, the court found that the Judge's directions did not address admissibility issues but rather directed the defence to make an application under section 344A. Consequently, the court concluded that it did not have jurisdiction to grant leave to appeal from these directions, as the appeal was not based on the refusal to make an order, but rather on the order itself which did not concern admissibility.

The court's decision was grounded in the interpretation of the statutory provisions and the specific nature of the Judge's directions. It held that the Judge's orders did not pertain to admissibility, and thus, did not fall within the scope of section 379A(1)(aa) of the Crimes Act. The case distinguished itself from previous rulings by noting that the mode of giving evidence cannot be equated with admissibility in the present context.

Ultimately, the court denied the application for leave to appeal, affirming that it had no jurisdiction to entertain the appeal based on the nature of the Judge's directions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

We now address the question whether this Court has jurisdiction to give leave to appeal against the Judge's directions, as sought by Messrs Kenner and Livingston. Section 344A of the Crimes Act 1961 states:344A. INTERLOCUTORY ORDER RELATING TO ADMISSIBILITY OF EVIDENCE - (1) Where any person is committed for trial and-- (a) The prosecutor or the accused wishes to adduce any particular evidence at the trial; and (b) He believes that the admissibility of that evidence may be challenged,- he may at any time before the trial apply to a Judge of the Court by or before which the indictment is to be tried for an order to the effect that the evidence is admissible. (2) The Judge shall give each party an opportunity to be heard in respect of the application before deciding whether or not to make the order. (3) The Judge may make an order under this section on such terms and subject to such conditions as he thinks fit. (4) Nothing in this section nor in any order made under this section shall affect the right of the prosecutor or the accused to seek to adduce evidence that he claims is admissible during the trial, nor the discretion of the trial Judge to allow or exclude any evidence in accordance with any rule of law. The Crimes Act, which governs indictable cases, gives rights of appeal from the trial Court in three situations. First, there is the conventional right of appeal against conviction and sentence afforded by s383. That right is exercisable only after trial. Second, rights of appeal arise under ss380 and 381 on questions of law reserved during or after trial or where the trial Court has declined to reserve such a point. Third, at the pre-trial stage the accused has the rights specified in s379A which covers the field for pre-trial purposes, save only for questions of bail and costs which are dealt with under ss379B, 379C, 379CA and 379D. Thus, if there is any right to seek leave to appeal from the Judge's directions in this case, it must be found in s379A. The only part of that section which could apply is s379A(1)(aa) which gives a right of appeal by leave of this Court:(aa) Against the making of an order under section 344A of this Act, or against the refusal of a Judge to make such an order: The Judge was here dealing with an application purporting to be brought under s344A but its purported foundation is not the real issue. It is necessary to determine the nature of the order the Judge actually made to see if it is of a kind to which para (aa) applies. It should be noted that it is against the order made, not against any refusal to make an order, that Messrs Kenner and Livingston seek leave to appeal. Specifically the challenge is to para 1(ii) and para 2 of the Judge's directions. It is patent from the terms of those directions that the Judge was not deciding whether any particular evidence was admissible at the forthcoming trials. No question of admissibility in any relevant sense is addressed in the directions, save in para 2(i) which, on its face, does not determine any question of admissibility but simply directs the defence to make a s344A application. Hence this Court has no jurisdiction under s379(1)(aa) to grant leave to appeal from the Judge's directions. No other source of jurisdiction was suggested. The present case is not covered by R v Accused (supra para [15]) on which the Judge relied. In that case the mode of giving evidence was equated with admissibility. No such equation can be made in present circumstances.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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