Westrupp v Police

[2015] NZHC 50

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2014-416-012 [2015] NZHC 50

BETWEEN

GLYNIS SHARON WESTRUPP

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 February 2015
Counsel:	G S Westrupp, in person, Appellant M Mitchell for Respondent
Judgment:	3 February 2015

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Napier
Copy to:

G S Westrupp, Appellant

WESTRUPP v NEW ZEALAND POLICE [2015] NZHC 50 [3 February 2015]

[1]      Ms Westrupp was charged with driving with a breath alcohol concentration exceeding 400 micrograms of alcohol per litre of breath.   The circumstances in which  the  offence  was  alleged  to  have  been  committed  involved  driving  that occurred at 5.20pm on 11 September 2014 in Wairoa.   The evidential breath test reading that was undertaken revealed 520 micrograms of alcohol per litre of breath.

[2]      Ms Westrupp appeared in the District Court at Wairoa on 18 September 2014. The presiding Community Magistrate noted an intimated guilty plea and a card was given to Ms Westrupp to inform her that her next appearance would be on 9 October

2014.  Ms Westrupp appeared on 9 October 2014. A plea of guilty was entered.  The Community Magistrate convicted her.   She was fined $500, ordered to pay Court costs and disqualified from holding or obtaining a driver licence for six months.1

[3]      After that hearing Ms Westrupp says that she realised that she had been charged with driving with an excess breath alcohol concentration rather than an offence involving intoxication.   This was an issue that had not apparently been explained fully at the time the intimated guilty plea was given on 18 September

2014.  She had not had the summary of facts explained to her before she intimated a guilty plea.

[4]      I have heard from Ms Westrupp this morning as to the circumstances in which the guilty plea was entered.  I am satisfied that the circumstances that have been explained to me (and it is unnecessary to go into the detail of them) are sufficient  to  bring  the  case  within  the  principles  set  out  in  R  v  Le  Page.2     A miscarriage of justice may have arisen because Ms Westrupp did not appreciate the nature of or did not intend to plead guilty to the particular charge.3

[5]      As  it  happens,  the  lawyer  who  acted  as  counsel  for  Ms  Westrupp  on  9

October 2014, Mr Sceats, was in Court today on another matter.  He has informed me that he was acting as Duty Solicitor that day.   He has no clear recollection of what occurred.  When I explained the fact that he had appeared at the time the guilty

plea was entered and that a prior intimation had been given of that, Mr Sceats

1      Police v Westrupp DC Wairoa CRI-2014-082-000364 (Community Magistrate L Jensen).

2      R v Le Page [2005] 2 NZLR 685 (CA).

3      Ibid, at paras [16] and [17].

accepted that it was possible that he did not explore the issue of identity with Ms Westrupp.   He has a vague recollection of the amount of alcohol being consumed being discussed but his view on that is consistent with what Ms Westrupp says and is unlikely to have been material of itself.

[6]      In those circumstances, I am satisfied that the entry of the guilty plea may have given rise to an unsafe conviction.

[7]      Accordingly, the appeal is allowed and the conviction on the excess breath alcohol charge is set aside, as are the sentences imposed in consequence.  The charge is remitted to the District Court for hearing in relation to the defence of identity that has been raised by Ms Westrupp on appeal.  As I explained to Ms Westrupp, she is now entitled to drive, pending determination of the charge in the District Court.

[8]      I direct that a transcript of what has been said in Court today be made and transmitted to the District Court, so that it is aware of the position taken by Ms

Westrupp on appeal.

P R Heath J