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 RespondentJudgment:
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…
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- [2016] NZHC 1480
- Decision Date
CaseChat Overview and Summary
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.
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