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…

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.

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Details

Case: [2016] NZHC 1480
Decision Date: 1 July 2016

CaseChat Overview and Summary

The High Court of New Zealand, Invercargill Registry, heard an appeal from Mr Hape Charles Waddell-Stephens against a decision of the District Court. Mr Waddell-Stephens had been found guilty of two charges under the Land Transport Act 1998, namely driving with an excess alcohol level while being a zero alcohol licence holder and driving with an excess alcohol level after previous convictions. He appealed on the basis that the charges should not have been pursued after he had already pleaded guilty and been convicted on the first charge. The Court was required to determine whether it was permissible for Mr Waddell-Stephens to be convicted on both charges when they arose from the same incident.

The central legal issue was whether Mr Waddell-Stephens could be convicted of both charges despite already being convicted on one of them, which raised questions of double jeopardy under section 10(4) of the Crimes Act 1961. The Court examined the District Court’s jurisdiction to rule on the matter and whether the correct legal test had been applied. The Court noted that the District Court had the authority to determine issues of double jeopardy, but the proper procedure should have involved Mr Waddell-Stephens entering a plea of previous conviction under section 46 of the Criminal Procedure Act 2011, or applying for a stay under section 147 of the same Act.

The Court found that the District Court had not correctly addressed the issue, as the proper procedure was not followed. The parties agreed that the appeal should be allowed, and the matter should be remitted to the District Court for the appropriate procedure to be invoked. The Court emphasised that the District Court would need to apply the statutory test under section 46 of the Criminal Procedure Act when determining the availability of a special plea of previous conviction. The Court also noted that the jurisdiction of the High Court to consider the pre-trial appeal might be a matter for future consideration if the matter were to return to court.

The High Court allowed the appeal and remitted the matter back to the District Court with the expectation that the parties would follow the agreed course of action, ensuring the issue was properly put before the District Court for its determination.

Orders