Williams v The Queen

[2020] NZCA 666

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA537/2020
 [2020] NZCA 666

BETWEEN	JOHN ALLAN WILLIAMS Applicant
AND	THE QUEEN Respondent

Court:	French, Whata and Mander JJ
Counsel:	Applicant in person S E Trounson for Respondent
Judgment: (On the papers)	18 December 2020 at 9 am

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

1. Mr Williams was convicted following a judge-alone trial in the District Court of a charge of intentionally obstructing a police officer.[1] Judge Gibson sentenced him to a term of imprisonment of two months.[2]  Mr Williams appealed to the High Court where Wylie J dismissed his appeal against conviction but reduced the sentence from two months’ imprisonment to one month’s imprisonment.[3]

   [1]Police v Williams [2020 NZDC 11463; and Summary Offences Act 1981, s 23(a).

   [2]Police v Williams [2020] NZDC 11349.

   [3]Williams v Police [2020] NZHC 2142 [High Court decision].

2. Mr Williams now seeks leave to appeal to this Court.  Leave is required because it would be a second appeal.[4]  The proposed appeal is against both conviction and sentence. 

   [4]Criminal Procedure Act 2011, ss 237(1) and 253(1).

3. In a minute dated 6 October 2020, Brown J directed the application for leave was to be heard on the papers.

Background

1. The case has its genesis in an incident at a police traffic checkpoint.  A constable stopped the vehicle Mr Williams was driving for the purposes of administering a breath screening test using a passive breath testing device.  There was an argument.  According to the police evidence, Mr Williams disputed the constable’s right to require him to do that.  He refused to wind his window down fully (it was open a few centimetres) and became abusive.  When another police sergeant repeated the request to wind down the window and Mr Williams again refused, the sergeant broke the car window and forcibly removed Mr Williams from the car.

2. Mr Williams was then taken to a police station where he returned a zero reading for his breath test.

3. Police charged him with resisting a constable in the execution of his duty under s 23 of the Summary Offences Act 1981.  Despite Mr William’s objection, that charge was subsequently amended by leave at the close of evidence in the District Court to a charge of intentionally obstructing a constable under that same section.[5]

Grounds of the proposed appeal against conviction

[5]Police v Williams [2020] NZDC 11507.

1. Mr Williams seeks to advance several arguments in this Court:[6]

   (a)Every New Zealander has the right to refuse all forms of alcohol testing except evidential blood/alcohol testing.

   (b)The High Court erred in finding that the police had a right to enforce the opening of the window when the window was clearly sufficiently open for effective communication.

   (c)The District Court and High Court erred in finding that the police had requested Mr Williams to undergo a breath screening test.

   (d)The late amendment of the charge occasioned a miscarriage of justice.

Analysis of the proposed conviction appeal

[6]For completeness, we note that in addition to the matters detailed in [7], Mr Williams has filed a set of submissions alleging police misconduct which he acknowledges is not directly related to the appeal.

1. In order to be granted leave to bring a second appeal, Mr Williams must persuade us that either the proposed appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[7]  The threshold has been held to be a high one.[8]

   [7]Criminal Procedure Act, s 237(2).

   [8]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764; and Gorgus v R [2016] NZCA 508 at [8].

2. In our view, none of the proposed grounds of appeal whether viewed individually or collectively meets that test.

3. First, the proposition that the Land Transport Act 1998 does not require motorists to undertake a breath screen testing at a roadside police checkpoint is demonstrably wrong in law. Under s 68(1)(a) the officers in this case had the power to require Mr Williams to undergo a breath screening test without delay, and by virtue of s 13, Mr Williams was obliged to comply with that request. A refusal to comply with such a request may not itself be a specific offence under the Land Transport Act but it does trigger powers to require the driver to accompany the police to a place where testing can be conducted,[9] and it may also amount to obstructing a police officer in the execution of his duties.[10]

   [9]Land Transport Act 1998, s 69(1)(c).

   [10]Summary Offences Act, s 23; and see similarly, Land Transport Act, s 53.

4. Secondly in so far as Mr Williams seeks to challenge findings of fact, the challenges are obviously case-specific and not of general or public importance.  Further, these were concurrent findings of fact — that is to say, made by the District Court and the High Court — and for which there was a strong evidential basis.  We note too that the fact a window is sufficiently open for the purposes of communication does not necessarily equate to it being sufficiently open for the purposes of administering a breath screening test.

5. As regards the amendment of the charge, we acknowledge that Mr Williams may feel prejudiced because without the amendment he would have been acquitted.  However, that is not of itself grounds to claim a miscarriage of justice in circumstances where although the evidence did not support a charge of resisting, it did support the charge of obstruction.  As the Crown submits, both charges arose from the same factual matrix, and the same provision of the Summary Offences Act.  Further, in relation to both charges the key evidence was the same, namely the evidence of the interactions between Mr Williams and the constable.  Mr Williams’ ability to mount an effective defence was not prejudiced by the amendment or its lateness.

The proposed appeal against sentence

1. The focus of Mr Williams’ application for leave is on the proposed appeal against conviction.  However, as mentioned, he also seeks leave to appeal the sentence.

2. In relation to the sentence appeal, the circumstances are that at the time of the sentencing in the District Court on 18 June 2020, Mr Williams was in custody on remand pending a trial on other matters.  In light of that, Judge Gibson considered the only possible outcome could be a prison sentence.

3. The High Court appeal was heard on 17 August 2020 at which time Mr Williams was still on remand. In his decision issued on 24 August 2020, Wylie J stated that had it not been for the custodial remand, the appropriate sentence in his view would have been a sentence of 250 hours’ community work.[11]  However, the remand combined with the absence of any power under the Sentencing Act 2002 to defer a sentence of community work when a person is in prison,[12] meant there was no viable alternative but to sentence Mr Williams to a short term of imprisonment.  The Judge also stated that he had considered the imposition of a fine — which had wrongly not been considered in the District Court — but had not been provided with any information regarding Mr Williams’s ability to pay a fine.[13]

   [11]High Court decision, above n 3, at [38].

   [12]It is possible to defer a sentence of home detention when a person is serving a community-based sentence.  Compare Sentencing Act 2002, ss 20A(2)(b) and 57A.

   [13]High Court decision, above n 3, at [35] and [39].

4. As regards the term of the prison sentence, Wylie J considered that two months was manifestly excessive and reduced it to one month.

5. The only submission Mr Williams has advanced in support of his proposed appeal against sentence is that the Judge sentencing him “clearly stated” that a person convicted of obstructing a police officer would “NEVER receive a custodial sentence” and that as matters have unfolded, he did not receive any convictions requiring custody except the one.  Mr Williams says the charges for which he was on remand were subsequently withdrawn and/or dismissed and that he was released from prison on 3 November 2020 after winning his final matter “convincingly”.

6. However, the fact that Mr Williams did not receive any custodial sentence in relation to the matters in respect of which he was on remand does not alter the fact that he was on remand at the time of sentencing and at the time of the appeal in the High Court where the sentence was halved.  The sentencing Judges did not err in taking that circumstance into account and it is not tenable to suggest there has been a miscarriage of justice.    

7. It follows we consider the threshold for granting leave is also not satisfied in relation to the proposed appeal against sentence.

Outcome

1. The application for leave to appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent