The Queen v Savage - [2006] NZCA 132

IN THE COURT OF APPEAL OF NEW ZEALAND
CA83/06
THE QUEEN
v
GEORGE SAVAGE
Hearing:30 May 2006

Court:O'Regan, John Hansen and Gendall JJ
Counsel:A M Powell and A J Bennett for Crown

T M Saseve for Respondent

Judgment:19 June 2006

JUDGMENT OF THE COURT

A        LEAVE TO APPEAL IS GRANTED.
B        THE APPEAL IS ALLOWED.
C        The evidence relating to previous convictions is admissible.
REASONS
(Given by John Hansen J)
Introduction
[1]       The Crown seeks leave to appeal against the decision of Judge Epati delivered on 27 February 2006 in the District Court at Manukau.
Background facts
[2]       On 9 December 2004 the respondent was stopped at Great South Road, Takanini and subjected to a breath screening test. As a consequence he was required to undergo an evidential breath test which produced a reading of 1107 micrograms of alcohol per litre of breath.
[3]       He was charged under s 56(1) of the 1998 Act, but the charge was laid indictably because the respondent has five previous convictions, one under the Land Transport Act 1998 of driving with excess blood alcohol, and the other four under the Transport Act 1962. The offences under the 1962 Act all involve driving without a licence with excess breath alcohol contrary to s 58(1)(b).
[4]       The respondent elected trial by jury and has been committed for trial.
[5]       The Crown indicated it would, if necessary, lead evidence of the four convictions against s 58(1)(b) of the 1962 Act in order to prove the current offence was a third or subsequent offence.
[6]       Section 56(4) of the 1998 Act provides that a person commits an indictable offence, on a third or subsequent offence against:
·s 56(1) or (2) (excess breath or blood alcohol); or
·s 58(1) (driving under the influence); or
·s 60(1) (failing or refusing to permit a blood specimen); or
·s 61(1) or (2) (causing death or injury under the influence of drink or drug).

For the purposes of s 56(4) it does not matter whether the qualifying offence is the same kind as the person’s first or second offence. On conviction the maximum penalty is a term of imprisonment not exceeding two years or a fine not exceeding $6,000. The Court is also required to order the person to be disqualified from holding or obtaining a driver’s licence for more than one year.
[7] Under subs (5) a conviction for an offence against a provision of the 1962 Act corresponding to an offence specified in subs (4) is to be treated as a conviction for an offence specified in subs (4), i.e. a qualifying offence.
[8] At the appellant’s request the Crown applied under s 344A of the Crimes Act for determination of the admissibility of the evidence of convictions under the 1962 Act. We are not convinced that the issue was, in truth, an admissibility issue: rather the parties really seemed to be seeking a ruling about the proper construction of s 58(4), which is outside the scope of s 344A. Nevertheless…

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 Savage

Details

AGLC: The Queen v Savage [2006] NZCA 132
Case: [2006] NZCA 132
Decision Date: 19 June 2006

CaseChat Overview and Summary

The Crown, represented by A M Powell and A J Bennett, sought leave to appeal against the decision of Judge Epati delivered on 27 February 2006 in the District Court at Manukau, which ruled that evidence of the respondent's previous convictions was inadmissible. The respondent, George Savage, was charged under s 56(1) of the 1998 Act for driving with excess breath alcohol. The Crown sought to lead evidence of the respondent's previous convictions under the 1962 Act to prove that the current offence was a third or subsequent offence, thus making it indictable. The District Court held that evidence of the previous convictions was inadmissible as they were not corresponding offences for the purposes of s 56 of the 1998 Act. The Crown argued that the offences under the 1962 Act were corresponding offences and should be admissible. The Court of Appeal agreed, stating that the purposive approach to interpretation applied to criminal statutes and that the purpose of the 1998 Act was to target serious and repeat offenders. The Court found that the offences under the 1962 Act were corresponding offences to those found in s 56(4) of the 1998 Act, as they dealt with the same subject matter and prescribed the same penalties.

Leave to appeal was granted, the Crown's appeal was allowed, and the evidence of the previous convictions was held to be admissible.

Orders