R v Craven CA77/05

[2005] NZCA 371

IN THE COURT OF APPEAL OF NEW ZEALAND

CA77/05

THE QUEEN

v

MARK ALBERT CRAVEN

Hearing:         20 September 2005

Court:            Hammond, Chambers and Robertson JJ Counsel:       S J Mitchell for Applicant

A M Powell for Crown

Judgment:      22 September 2005

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS

(Given by Chambers J)

An application for special leave to appeal

[1]      The police charged Mark Craven, the applicant, with driving a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol

R V CRAVEN CA CA77/05 22 September 2005

per litre of breath.  The prosecution was dismissed in the District Court, Judge Hole correctly considering himself bound by a High Court decision, Hunt v New Zealand Police HC AK A182/02 10 December 2002.   The effect of that decision was to render   the   result   of   Mr Craven’s   allegedly   positive   evidential   breath   test inadmissible.

[2]      The  police  appealed  to  the  High Court  under  s 107  of  the  Summary Proceedings Act 1957.  By the time that appeal was heard, this Court had reversed the High Court decision in Hunt:  Police v Tolich & Hunt (2003) 20 CRNZ 150.  The ground on which Mr Craven had succeeded in the District Court was accordingly swept  from  under  his  feet.    Notwithstanding  that,  Mr Mitchell,  for  Mr Craven, advanced various arguments as to why the police’s appeal should not succeed and, further, as to why the case should not be remitted to the District Court for rehearing. Keane J, who heard the appeal, ruled that the appeal be allowed and he ordered that the case be remitted to the District Court for determination in light of this Court’s decision  in  Tolich  &  Hunt:    NZ  Police  v  Craven  HC  AK  CRI2003-404-270

28 October 2003.

[3]      Mr Craven  sought  leave  to  appeal  to  this  Court  under  s 144(1)  of  the

Summary Proceedings Act.  Keane J declined that application on 16 February 2005.

[4]      Mr Craven has now sought special leave to appeal under s 144(3) of the same

Act.

Determination of the application for special leave

[5]      Special  leave  may  be  granted  only  if,  in  the  opinion  of  this  Court,  the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision:  see s 144(3) and the leading case of R v Slater [1997] 1 NZLR 211.

[6]      Mr Mitchell, who appeared for Mr Craven in this Court as in the two lower

Courts, said that the case gave rise to three important questions of law.

A jurisdictional bar?

[7]      The  first  was  as  to  the  correct  interpretation  of  s 108  of  the  Summary

Proceedings Act, which reads as follows:

No determination shall be appealed against by reason only of the improper admission or rejection of evidence.

[8]      Mr Mitchell submitted that the police’s appeal in this case was barred by s 108, as the police complaint was that the District Court Judge had improperly rejected evidence as to the result of the evidential breath test.  Section 108, and its historical  equivalents,  have  been  considered  in  a  number  of  cases  since  the

19th century.  These cases are helpfully collected in Fisher J’s decision in Davies v Mingins HC ROT AP48/91 30 October 1991 at 5.   As Fisher J  observed, those decisions over that long period “have cut down the apparent scope of s 108 with the result that the appeals in question were able to proceed”.  He noted that no case had been cited to him in which s 108 proved an obstacle in practice.

[9]      Fisher J observed that the cases established that s 108 did not bite if “the appeal goes directly to a matter of substantive law and the improper acceptance or rejection of evidence is no more than consequential upon that error”:  at 6.  That is exactly the position in the present case.  The real point of the police’s appeal was to challenge the finding in Hunt at High Court level that the police error in the advice notice specified in s 77(3)(a)(i) of the Land Transport Act 1998 could not be saved by s 64(2) of that Act.  The High Court Judge in Hunt had held that it could not be saved by s 64(2), but in that regard this Court held him to have been in error.

[10]     Mr Mitchell accepted that, in order to succeed on this question of law, he would have to show that Davies v Mingins and the other cases referred to in it were wrongly decided.  That may be a question of law, but it is not one in respect of which we would be prepared to grant special leave.   We see no room for a successful challenge to such well-established interpretation of s 108.

[11]     Mr Mitchell’s second question of law focused on infelicities in the question of law formulated in the case stated by Judge Hole.  Keane J noted the infelicities, but considered that the question was nonetheless clear as to its intent.  He provided an  answer,  which  satisfactorily  dealt  with  the  obvious  point  of  the  appeal. Mr Mitchell raised the question of whether Keane J had jurisdiction to deal with the matter in the way he did.   Mr Mitchell argued that the High Court should have refused to answer the question, and instead should have caused the case stated to be sent back to the District Court for amendment:  s 111 of the Summary Proceedings Act.   Once again, there may be a question of law as to powers of the High Court where a case stated contains an error, obvious though that error may be.  But it is not a question of general or public importance, being specific to this case.  It is also a question entirely devoid of any substantive merit.  Even had Keane J sent the case stated back for amendment, on its return to the High Court he obviously would have given the same answer he in fact gave.

Discretion to remit

[12]     Mr Mitchell’s third point was whether the High Court has a discretion not to remit a case even when the case stated is answered in the prosecution’s favour.  That is not a question of law arising in this case, as Keane J accepted that there was a discretion.  What Keane J found is that the reasons Mr Mitchell had given as to why the case should not be remitted were not persuasive.  We can well understand why he found those particular factors unpersuasive.  We also would have.

[13]     For  these  reasons,  none  of  the  three  questions  meets  the  criteria  under s 144(3).

[14]     Keane J, in his leave judgment, also referred to Mr Craven’s extreme delay in applying for leave to appeal.   Under s 144(2), he had 21 days from the date of Keane J’s original decision within which to apply for leave.  In fact, he did not apply until a year later.  He filed no affidavit explaining the delay.  Keane J, while noting that he had jurisdiction under s 144(2) to extend time, considered that time should not be extended.  That course was clearly open to him.  The delay was extraordinary. We  have  also  considered  that  delay  as  a  factor  in  determining  whether  these questions “ought to be submitted” to this Court for decision.   It is a factor in our overall  conclusion  that  the  questions  ought  not  to  be  submitted  and  that  the application for special leave must be dismissed.

Solicitors:

Stephen J Mitchell, Auckland for Applicant

Crown Law Office, Wellington