Waddell-Stephens v Police

[2016] NZHC 1480

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2016-425-11 [2016] NZHC 1480

BETWEEN

HAPE CHARLES WADDELL-

STEPHENS Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 and 29 June 2016
Appearances:	J Mooney for Appellant M-J Thomas for Respondent
Judgment:	1 July 2016

JUDGMENT OF MANDER J

[1]      The  appellant,  Mr  Hape Waddell-Stephens,  has  appealed  a  ruling  of  the District Court that he is liable for conviction on two charges arising from his driving with an excess blood alcohol level in breach of the Land Transport Act 1998.

[2]      Mr Waddell-Stephens was charged with being the holder of a zero alcohol licence he drove a motor vehicle with an excess alcohol level (zero licence charge).1

He was also charged with an offence of driving with an excess alcohol level having been convicted on two previous occasions of qualifying offences (aggravated excess alcohol charge).2   Both charges relate to his apprehension on 11 February 2016 when he was the subject of drink-driving procedures.   Both carry the same maximum penalty of two years imprisonment or a fine of $6,000 and appear to be considered of

equal seriousness.3

1      Land Transport Act 1988, ss 57AA(5) and (6).

2      Sections 56(2) and (4).

3      Criminal Procedure Act 2011, s 46(2).

WADDELL-STEPHENS v NEW ZEALAND POLICE [2016] NZHC 1480 [1 July 2016]

[3]      Mr Waddell-Stephens argued that having been convicted on the zero alcohol licence charge, he could not be convicted on the second charge of aggravated driving with excess alcohol.

[4]      When the charges were called in the District Court, Mr Waddell-Stephens’s counsel approached the prosecution advising he was willing to plead to one of the charges but not both.  The police wished to proceed in respect of the second charge. Mr Waddell-Stephens pleaded guilty to the zero alcohol licence charge and, importantly,  a  conviction  was  entered.     By  agreement  the  defence  and  the prosecution then sought a ruling from the District Court Judge as to whether, as it appears was the agreed issue between them, the charges offended against s 10(4) of the Crimes Act 1961. That provision provides:

10       Offence under more than 1 enactment

(1)       Where an act or omission constitutes an offence under this Act and under any other Act, the offender may be prosecuted and punished either under this Act or under that other Act.

(2)       Where an act or omission constitutes an offence under 2 or more Acts  other  than  this  Act,  the  offender  may  be  prosecuted  and punished under any one of those Acts.

(3)       Where an act or omission constitutes an offence under 2 or more provisions of this Act or of any other Act, the offender may be prosecuted and punished under any one of those provisions.

(4)      No one is liable to be punished twice in respect of the same offence.

[5]      The District Court released a minute finding that each charge was distinct and separate and did not offend against s 10.4   Reference was made to an earlier decision of the District Court, Police v Broom, where a similar issue had arisen in respect of offending under the Land Transport Act.5

[6]      The  appeal  was  brought  as  a  question  of law,  pursuant  to  s  296  of the Criminal  Procedure Act  2011  (the Act).    The  issue  as  framed  for  this  Court’s consideration was whether it was possible for Mr Waddell-Stephens to be convicted of both charges which arose from the same factual matrix.  Mr Waddell-Stephens did

not dispute that either charge was available to the prosecution, but submitted that he,

4      Police v Waddell-Stephens DC Invercargill CRI-2016-025-452, 6 April 2016.

5      Police v Broom DC Tauranga CRI-2014-070-002947, 12 November 2014.

having already pleaded guilty and been convicted on one of the charges, could not be convicted of the other.

[7]      The Crown sought to uphold the District Court Judge’s ruling.   It submitted the elements of the two charges were different, and related to breaches of discrete duties.

[8]      When  the  matter  was  called  before  me,  I  raised  with  counsel  what  I considered  to  be  a  jurisdictional  difficulty  with  the  way  the  issue  had  been approached in the District Court.  A related concern was whether, as a result, the correct legal test had been identified and applied.

[9]      The District Court’s jurisdiction to determine what is essentially a claim of double jeopardy is governed by ss 45-49 of the Act which provides for special pleas, and in particular s 46 which like its predecessor, s 358 of the Crimes Act 1961, provides for the entry of a plea of previous conviction (formerly a plea of autrefois convict).   The alternative jurisdictional basis upon which the District Court could consider  whether  multiple  charges  are  bad  for  duplicity is  by invocation  of  its inherent power to prevent an abuse of its own process or by application under s 147 of the Act.

[10]      Section 46 of the Act permits a defendant to enter a special plea of previous conviction, and s 49 provides the procedure for dealing with such a special plea. Those provisions are as follows:

46       Previous conviction

(1)       If a plea of previous conviction is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been convicted of—

(a)       the same offence as the offence currently charged, arising from the same facts; or

(b)      any other offence arising from those facts. (2)      Subsection (1) does not apply if—

(a)       the defendant was convicted of an offence and is currently charged with a more serious offence arising from the same facts; and

(b)       the court is satisfied that the evidence of the more serious offence was not readily available at the time the charging document for the previous offence was filed.

49       Procedure for dealing with special plea

(1)       If a special plea is entered, the availability of that plea must be decided by a Judge.

(2)      In deciding whether a special plea is available to the defendant, the

Judge may consider any evidence the Judge considers appropriate.

(3)       If the Judge decides that the special plea entered is not available to the defendant, the defendant must be required to enter a plea of guilty or not guilty to the charge.

(4)       Despite subsection (1), if a special plea is entered in relation to a charge for a category 4 offence, the availability of that plea must be decided by a High Court Judge.

[11]     Section 10 of the Crimes Act, which was the parties focus before the District Court, permits the prosecution of a person for an act or omission which constitutes an offence under two or more Acts.   That of course is subject to the fundamental requirement that a person not be punished twice in respect of the same offence; in other words, the rule against double jeopardy.6    Section 10, however, does not of itself provide the process or set the threshold by which the issue is to be determined where a conviction has already been entered.

[12]     The District Court clearly has jurisdiction to determine the issue, however, Mr Waddell-Stephens either should have entered a plea of previous conviction in relation to the second charge, or made application for the charge to be stayed or dismissed on the basis that its continued prosecution was an abuse of the Court’s process.  Neither course was adopted.

[13]     By agreement the parties appear to have sought the Court’s ruling regarding whether the two charges offended against the statement contained in s 10(4) of the Crimes Act.    This  appears  to  have  occurred  without  regard  to  the  fact  that  a conviction had already been entered on one of the charges. As previously observed s

10(4) is declaratory of the fundamental principle that a person cannot be liable to be

punished  twice  for  the  same offence.7      Section  10,  however,  does  not  of itself provide pre-trial jurisdiction to the District Court to determine the issue.

[14]     Upon raising these issues with counsel it was accepted the issue had not been correctly put before the District Court.   Mr Mooney on behalf of the appellant acknowledged that upon entry of the conviction on the first charge he should have requested that a plea of previous conviction be entered in respect of the second charge, thereby triggering the District Court’s jurisdiction under s 46.

[15]     Ms Thomas on behalf of the Crown also acknowledged the jurisdictional difficulty and that because of the entry of the conviction the matter should have been dealt with either as provided by the Act or by application for a stay.

[16]     I adjourned the appeal for 24 hours to provide counsel with an opportunity to reflect on the issues and to consider their position.   Counsel in the interim filed a joint memorandum.  They are in agreement that an appropriate course would be to allow the appeal and remit the matter back to the District Court in order for the appropriate procedure to be invoked.  Mr Waddell-Stephens will, pursuant to s 45, enter a special plea of previous conviction to the aggravated excess alcohol charge. The District Court will then need to decide, pursuant to ss 46 and 49, whether the special plea is available.

[17]     In discussing this proposed course with counsel, to which they have now agreed, I considered whether I could proceed to hear the appeal de novo.  However, counsels’ written submissions and preparation were confined to addressing the issue in the same terms as that put before the District Court.  Alternatively, I considered whether I should just deal with the appeal on the same basis that the District Court had considered the charges and treat the appeal as from a refusal to stay the aggravated excess alcohol charge.   Inevitably, however, Mr Waddell-Stephens will renew his challenge in the District Court by entering a special plea to the second charge.  The District Court will then be required to examine that issue in accordance with the statutory test provided by s 46.

[18]     As will be apparent from a reading of s 46, the test to be applied is different from  the  repealed  s  358  of  the  Crimes  Act  1961,  and  its  interpretation  and application needs some care.  The provision was examined by Katz J in Rangitonga v Parker, in the context of a plea of previous acquittal.8     That case provides an exhaustive review of the legislative history of ss 46 and 47, and considers the correct approach to be taken to the term “arising from the same facts” as it is referred to in

ss 45 and 46.

[19]     A subsidiary issue is the jurisdiction of this Court to consider this issue as a pre-trial appeal on a question of law.  It is not necessary for the purposes of this short and limited judgment to review that issue in any depth.  It is sufficient to note the right of appeal under s 296 lies only in relation to a question of law which arises in proceedings that relate to the determination of the charge.   That issue was also considered in Rangitonga v Parker, and has recently been considered by the Court of

Appeal in Anderson v R.9   It is premature to anticipate whether the matter will return

to this Court, however, in the event of any subsequent appeal it would perhaps be a worthwhile first step to address the issue of jurisdiction.

[20]     There being agreement between the parties the appeal should be allowed, I remit the matter back to the District Court in the expectation the course outlined in the joint memorandum will be followed and the issue properly put before the District Court for its determination.

Solicitors:

Preston Russell Law, Invercargill

Joseph Mooney Barrister and Solicitor, Queenstown

8      Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73.

9      Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321.