The Queen v Ali'i'matafitafi [2006] NZCA 179 (26 July 2006)

Last Updated: 9 August 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA108/06

THE QUEEN



v



IAO METAI ALI’I’MATAFITAFI

Hearing: 17 July 2006

Court: Chambers, Robertson and Ellen France JJ

Counsel: Applicant in Person
A M Powell for Crown

Judgment: 26 July 2006

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

[1]	On 26 October 2005, after a defended hearing before Judge Deobhakta, Iao Ali'i'matafitafi was found guilty of one charge of driving with excess breath alcohol. Mr Ali'i'matafitafi was convicted and fined $700 and ordered to pay court costs of $130. In addition, he was disqualified from holding or obtaining a driver’s licence for a period of six months.
[2]	Mr Ali'i'matafitafi appealed to the High Court. Frater J dismissed that appeal: Ali'i'matafitafi v New Zealand Police HC AK CRI-2005-404-385 28 February 2006.
[3]	Mr Ali'i'matafitafi applied for leave to appeal to this court under s 144 of the Summary Proceedings Act 1957. Frater J heard that application and dismissed it on 9 March this year. She found that three of the applicant’s proposed questions for this court were questions of fact, not law. The fourth was plainly not a question of law which could properly be referred to this court on a charge of driving with excess breath alcohol.
[4]	Mr Ali'i'matafitafi now seeks special leave to appeal to this court under s 144(3) of the Summary Proceedings Act. At the hearing before us, the applicant said there were four questions he wished to pursue in this court.
[5]	The first was that he was not given a "caution" under the New Zealand Bill of Rights Act 1990. Judge Deobhakta found that he was given his rights under the Bill of Rights. Frater J concluded that that finding of fact could not be set aside. Whether Mr Ali'i'matafitafi was given his rights was a question of fact which cannot be raised in this court.
[6]	The second matter Mr Ali'i'matafitafi wishes to raise was Judge Deobhakta’s "refusal to grant [him] an adjournment". While we have some concerns about the way Judge Deobhakta handled the applicant’s request for an adjournment, we do not consider a miscarriage of justice resulted from it. Mr Ali'i'matafitafi did not press his request, and ultimately Judge Deobhakta was not required to make a ruling. We have a transcript of the discussion between Judge Deobhakta and Mr Ali'i'matafitafi on this point, and the inference may be drawn from it that the applicant, when it was explained to him the length of the delay should the fixture be lost, preferred to press on. That was certainly the conclusion Frater J came to on appeal. This is not a proper matter for a second appeal.
[7]	Mr Ali'i'matafitafi’s third point related to the two forms which the police officer said he read out to Mr Ali'i'matafitafi, the first prior to requiring him to undergo an evidential breath test, and the second advising him of his right to give a blood sample. By reading out these forms, the police officer advised the applicant of his rights under the Bill of Rights and the Land Transport Act 1998. According to the police officer, the applicant refused to sign either form. The applicant wishes to advance an argument that the police officer was required to give him on the spot copies of these advice forms for him to retain. There is no such legal requirement. This point has no chance of success.
[8]	The applicant’s last point, as set out in his notice of application for special leave, is very obscure. Mr Powell interpreted it as a complaint that neither Judge Deobhakta nor Frater J had taken into account Mr Ali'i'matafitafi’s assertion that he was not drunk. As to that, Mr Powell submitted:
15.	If there were any genuine issues as to the constituent elements of the offence, that would amount to a question of law of general or public importance. No such issue arises.
16.	The appellant was not charged with driving while under the influence of drink or a drug (s 58 Land Transport Act 1998). He was charged with, and convicted of, an offence under s 56 of the Act (contravention of the specified breath alcohol limit).
17.	The quality of the applicant’s driving and the extent of his intoxication were therefore irrelevant. The only salient fact was that an evidential breath test disclosed a breath alcohol concentration that was more than twice the allowable limit. In the absence of a blood test that was conclusive proof against him that the offence had been committed (s 64(5) Land Transport Act 1998).
[9]	Mr Powell’s submission on that topic is clearly correct.
[10]	Mr Ali'i'matafitafi, in his reply, appeared to accept that Mr Powell had correctly identified the issue. He continued to assert, however, that it could not be right that his "driving and extent of his intoxication were irrelevant". On this, the applicant is wrong, for the reasons given by Mr Powell.
[11]	No questions of law meeting the statutory criteria arise. Mr Ali'i'matafitafi’s application must be dismissed.

Solicitors:
Applicant in Person
Crown Law Office, Wellington