Tonga v Police - [2020] NZHC 1106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-66

[2020] NZHC 1106

BETWEEN
SEFITA TONGA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 May 2020

Appearances:

A Shaw for the Appellant J C for the Respondent

Judgment:

26 May 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 26 May 2020 at 11 a.m.
Registrar/Deputy Registrar Date:

TONGA v NEW ZEALAND POLICE [2020] NZHC 1106 [26 May 2020]

[1] Following a Judge alone trial in the District Court at Manukau the appellant, Sefita Tonga, was convicted by Judge T V Clark on charges of driving with excess breath alcohol1 and careless driving2 relating to an incident that occurred on 5 November 2017.3

[2] On the charge of driving with excess blood alcohol, Judge Clark sentenced Mr Tonga to a fine of $900, and a six-month disqualification from driving.4 On the charge of careless driving, Mr Tonga was convicted and discharged by Judge Clark.5

[3] Mr Tonga appeals against his conviction on the charge of driving with excess breath alcohol and against the sentence imposed.

[4] The crux of the appeal is whether the District Court Judge should have excluded the breath specimen evidence under s 30 of the Evidence Act 2006. Mr Shaw, on behalf of Mr Tonga, submits this evidence was improperly obtained because Mr Tonga did not fully understand the nature of his right to counsel nor did the Police properly facilitate Mr Tonga’s exercise of that right. Mr Shaw accepts that if the conviction appeal does not succeed, then the sentence appeal will also fall away.

Approach on appeal

[5] Section 229(1) of the Criminal Procedure Act 2011 (CPA) allows a person to appeal against their conviction to the High Court.6 Section 232 of the CPA sets out that an appeal against conviction must be allowed if, in the case of a Judge alone trial, the Judge erred in her or his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason. In any other case the appeal will be dismissed.

1      Land Transport Act 1998, s 56(1) and (3). Maximum penalty of three months’ imprisonment or a fine not exceeding $4,500 and the Court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.
2      Land Transport Act 1998, s 37(1). Maximum penalty of a fine not exceeding $3,000, and the Court may order the person to be disqualified from holding or obtaining a driver license for such period as the Court thinks fit.
3      Police v Tonga DC Manukau CRI-2017-092-013352, 23 May 2019.
4      Police v Tonga [2020] NZDC 3869 at [7] and [8].
5 At [2].
6      Criminal Procedure Act 2011, s 230(b).

[6]The Supreme Court in Sena v Police confirmed that:7

…in assessing whether there has been an error, an appellate court must take into account…

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 Tonga v Police

Details

AGLC: Tonga v Police [2020] NZHC 1106
Case: [2020] NZHC 1106
Decision Date: 26 May 2020

CaseChat Overview and Summary

Sefita Tonga appeals against his conviction and sentence for driving with excess breath alcohol and careless driving. Tonga was convicted in the District Court and sentenced to a fine and a six-month disqualification from driving. Tonga argues that the evidence of the breath test should be excluded as it was improperly obtained due to a breach of his right to counsel under the New Zealand Bill of Rights Act 1990. Tonga argues that he did not fully understand his right to counsel nor did the police properly facilitate his exercise of that right. The High Court found that Tonga did understand his right to counsel and that the police had taken reasonable steps to facilitate his exercise of that right. The Court held that even if there had been a marginal breach of Tonga's rights, exclusion of the evidence would have been a disproportionate consequence. The appeals against conviction and sentence were dismissed.

The central issue was whether the District Court judge should have excluded the breath specimen evidence under s 30 of the Evidence Act 2006. The Court found that Tonga understood his right to counsel and that the police had taken reasonable steps to facilitate his exercise of that right. The Court held that even if there had been a marginal breach of Tonga's rights, exclusion of the evidence would have been a disproportionate consequence. The appeals against conviction and sentence were dismissed. The Court found that the District Court judge did not err in assessing the evidence and that the sentence was not manifestly excessive. The High Court therefore dismissed the appeals.

Orders