W v Police HC Auckland CRI 2010-404-83

[2010] NZHC 864

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-83

BETWEEN  W

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 June 2010

Counsel:         Z Mohamed for Appellant

P Singh for Respondent

Judgment:      8 June 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland

Zahir Mohamed, PO Box 39 119, Howick, Auckland

W V NEW ZEALAND POLICE HC AK CRI 2010-404-83  8 June 2010

[1]      Mr W   appeals against his conviction on a charge of driving with an excess blood alcohol concentration.

[2]      Originally, Mr W   was convicted of that offence on 15 August 2008, following a defended hearing in the District Court.   He appealed against that conviction on the sole ground that his rights under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 had been breached, on the basis that a police officer did not adequately facilitate his right to adequately consult and instruct a lawyer.

[3]      In a judgment given on 28 November 2008, this Court allowed that appeal and remitted the information for rehearing in the District Court.  The rehearing took place before Judge Aitken on 31 July 2009.   The issue on which this Court had remitted the information for rehearing related to whether legal professional privilege had been waived in relation to discussions between Mr W   and a lawyer to whom he spoke and, if so, how evidence could be given in relation to those discussions.  The rehearing on 31 July 2009 proceeded on that basis.

[4]      Neither party raised any question either with this Court or with the District

Court as to whether the information had been remitted on the correct basis.  Section

131(2) of the Summary Proceedings Act 1957 gives power to this Court to remit the determination appealed from on the basis that “the case shall be dealt with as if a rehearing as to the whole matter had been granted”.

[5]      The fact that the rehearing followed that path is apparent from the notes of evidence taken before Judge Aitken.   The first question to the constable who was called makes it clear that the rehearing was on a specific matter and that the witness would be questioned only about that.

[6]      The rehearing resulted in a reserved judgment, in which Mr W   was again convicted.  He has appealed to this Court against that conviction on grounds relating to the admissibility of the blood test taken from him alleging that the Judge erred in admitting that evidence.

[7]      Ms Singh, for the Police, in submissions filed in advance of the hearing raised the s 131(2) point.  She has candidly accepted, as does Mr Mohamed for Mr W  , that the extent of this Court’s power to remit an information for rehearing was not argued before the Judge on the first appeal.  No point was taken in relation to that subsequently, before Judge Aitken.

[8]     Mr Mohamed seized upon the issue, submitting that no rehearing as contemplated by the legislation has occurred and on that basis alone the appeal should be allowed.

[9]      If an effective rehearing had taken place, with all points that could have been in issue adequately debated, I would not have been prepared to interfere with the Judge’s decision to proceed on that basis.  However, it is clear that, while the Judge properly followed the directions given by this Court, in doing so she took away an ability to challenge findings of fact made after the first hearing.

[10]     I do not criticise the District Court Judge for that approach.  She was quite right, particularly in the absence of any specific argument to the contrary, to embark upon the rehearing in accordance with the directions given by this Court on appeal.

[11]    It follows that the appeal must be allowed as no rehearing of the type contemplated by s 131(2) has occurred.   The real question is what consequences should follow.

[12]     Mr Mohamed submits that the delays in having the information resolved weigh in favour of setting aside the conviction with no direction as to a rehearing in the District Court.   In support of that submission, Mr Mohamed has relied on the considerable time that passed between reservation of judgment on 31 July 2009 and delivery of judgment on 15 March 2010.  In the meantime, Mr Mohamed brought an application  to  stay the  prosecution  on  grounds  of  delay.    That  application  was refused by the Judge primarily on the grounds that no prejudice could arise because all material credibility findings had been resolved in favour of Mr W  .

[13]     Driving with an excess blood alcohol concentration is a serious offence.  In this particular case, I know that both the breath alcohol limit and the blood alcohol limit were exceeded.  I know that because evidence has been given of both levels in the District Court.   The issues turn on what occurred before the breath or blood testing was undertaken.

[14]     These amount to technical objections to the process.  While every citizen has the right to challenge the process on grounds of that type, the Court is entitled to take into account the general public interest in ensuring blood alcohol prosecutions are resolved properly, in accordance with evidence adduced, rather than being dismissed without a final determination on the basis of all relevant evidence before the Court.

[15]     In my view, despite the delays that have occurred, a rehearing is necessary.  I

propose to allow the appeal and to direct the rehearing in the District Court.

[16]     Because a full rehearing is ordered it will be unnecessary for the appeal to be heard by Judge Aitken.  Having regard to the history, it may be preferable for it to be dealt with by another Judge.   I say that without intending any criticism of Judge Aitken and the way she dealt with the information.

[17]     The appeal is allowed.   The conviction entered on 15 March 2010 and the sentence passed in consequence are set aside.   A rehearing of the information is

directed, in accordance with s 131(2) of the Summary Proceedings Act 1957.

P R Heath J