Wilson v Police - [2013] NZHC 2448

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-404-000219 [2013] NZHC 2448

BETWEEN
ANNA MUNRO WILSON

Appellant

AND

NEW ZEALAND POLICE

Defendant

Hearing:	17 September 2013
Appearances:	M A Littlefair for Appellant C M Gisler for Defendant
Judgment:	19 September 2013

JUDGMENT OF VENNING J

This judgment was delivered by me on 19 September 2013 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors: Crown Solicitor, Whangarei Copy to: D J Blaikie, Kaikohe

WILSON v NZ POLICE [2013] NZHC 2448 [19 September 2013]

Introduction

[1] Following a defended hearing in the District Court at Kaikohe Ms Wilson was convicted of driving with excess breath alcohol while operating a vehicle in the transport service. Judge Davis entered the conviction on 25 July 2013 after delivery of a reserved decision on 22 July 2013.

[2] Ms Wilson lodged an appeal against conviction on 31 July 2013.

Background facts and process

[3] The facts can be shortly stated. On 20 October 2012 Ms Wilson was operating a taxi shuttle service in Paihia. She was stopped at a random breath test site on Selwyn Road and breath testing procedures were carried out. At the time Ms Wilson had a number of fare paying passengers with her. Ms Wilson failed the road side screening procedures. Eventually an evidential breath test was completed. Ms Wilson’s breath was found to contain 680 micrograms of alcohol per litre of breath.

[4] Following the completion of the evidential breath testing procedure, the attending officer, Constable Darbyshire, issued a summons in accordance with s 19B of the Summary Proceedings Act 1957 (the Act)1 requiring Ms Wilson to attend Court on 16 November 2012.

[5] The procedural position then became somewhat complicated. The police failed to issue an information within the seven days required by s 19B(3) of the Act. The police generated two informations, each of which had separate CRN numbers assigned to them. The first, ending CRN 1966, was not sworn until 16 November 2012. The second, ending in CRN 2007, was sworn on 30 October 2012.

[6] Ms Wilson was then served with a summons and the information ending CRN 2007 on 5 November 2012. Both informations were before the Court on 16 November 2012 when the matter was first called.

1 Although the section has been subsequently repealed, it still applies for present purposes: Criminal Procedure Act 2011, s 397.

[7] The police attributed CRN 1966 to the s 19B procedure and, on 15 January 2013, sought and were granted leave to withdraw that particular information. The prosecution proceeded on the basis of CRN 2007.

The District Court decision

[8] At the hearing before Judge Davis, Mr Littlefair argued there was no properly laid charge before the Court because the first information laid in the Court, CRN 2007, was the information attaching to the s 19B process. As it was laid outside the time prescribed by s 19B it was a nullity. While the police could have relied…

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: [2013] NZHC 2448
Decision Date: 19 September 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Anna Munro Wilson appealed against her conviction of driving with excess breath alcohol while operating a vehicle in the transport service. The appeal concerned the procedural validity of the information laid before the District Court. The appellant argued that the information attached to the breath test summons was invalid, as it was not laid within the time frame prescribed by section 19B of the Summary Proceedings Act 1957. The primary issue in this case was which of the two informations, CRN 2007 or CRN 1966, should be attributed to the section 19B procedure. The Court found that CRN 2007 was logically the information related to the s 19B procedure because it was laid within 10 days of the breath test, while CRN 1966 was laid almost four weeks later. Given that CRN 2007 was out of time and a nullity, and was the only information before the court at the time of the hearing, the appeal was allowed, the conviction was quashed, and the sentence imposed was set aside. Since more than six months had passed since the alleged offending, there was no order for a rehearing.

Orders