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High Court of New Zealand Decisions |
Last Updated: 7 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2014-404-63 [2014] NZHC 1370
PETER VERSCHAFFELT Appellant
v
NEW ZEALAND POLICE Respondent
Hearing:
|
17 June 2014
|
Counsel:
|
Appellant in Person
J Barry for Respondent
|
Judgment:
|
19 June 2014
|
JUDGMENT OF SIMON FRANCE J
[1] Mr Verschaffelt appeals his conviction for drink driving. The
information alleged that Mr Verschaffelt:
... drove a motor vehicle on a road namely Dominion Road while the proportion
of alcohol in your breath exceeded 400 micrograms of
alcohol per litre of breath
in that it was 550 micrograms of alcohol per litre of breath.
[2] The uncontested evidence was that Mr Verschaffelt was seen by a police officer parked in a petrol station which is on the corner of Mount Albert and Dominion Roads. He drove away from where he was parked to a parking spot adjacent to the petrol station. It is not obvious from the record whether it is inside or outside the environs of the petrol station, but the officer in evidence described it as
“the park outside the petrol
station”.
VERSCHAFFELT v NZ POLICE [2014] NZHC 1370 [19 June 2014]
[3] The background evidence is that police received a report of a man
urinating against a wall. They attended, but the man
had already left in his
car. The complainant had both in her initial call and then at the scene given
a description of the vehicle.
An officer went searching and believed she had
located it when she saw Mr Verschaffelt’s car at the petrol station. Had
Mr Verschaffelt been the man in question, the route to the petrol station,
200 to 300 metres, would encompass Dominion
Road.
[4] Mr Verschaffelt disputes he was ever in Jessop Street and says he
was not that person. His explanation of his movements
is that he was parked for
the night behind the petrol station. He had been drinking. In the morning he
drove his car to the petrol
station from the car park to check the radiator
water level, realised he should not be driving and put the car back in the park.
The petrol station to car park journey (about 20 to 30 metres) is what the
officer observed. When spoken to by the officer, he said
he had driven
“to the station from around the corner, about 50
metres”.
Appeal issue – Dominion Road
[5] Mr Verschaffelt maintained at trial, and again on appeal, that it
had not been proved he drove on Dominion Road. The prosecution
did not call
the initial complainant, and the car had left the scene before the police
arrived. There was accordingly no evidence
that he had driven on Dominion
Road. It is convenient to address the case on the three bases on which a
conviction might be entered.
Is it proved he drove from Jessop Street?
[6] It is common ground the evidence does not do this. So if proof of
driving on Dominion Road is dependent on Mr Verschaffelt
being the man
concerning whom the initial complaint was made, the evidence does not achieve
that.
Is it otherwise proved he drove on Dominion Road?
[7] The petrol station is on the corner of two roads, one of
which is
Dominion Road. The Judge had the advantage of Google Maps presented by
Mr Verschaffelt on which he showed where he says he drove. I have not seen
the maps but infer that this evidence must exclude him
driving on Dominion
Road.
[8] The Judge saw a conflict between this trial testimony, and Mr
Verschaffelt’s explanation to the police officer that
he had driven
“from around the corner”. His Honour considered the original
explanation the more likely.
However, Mr Verschaffelt was not asked
in evidence what he meant by his statement that he had driven from around the
corner.
It is apparent from what he told me on the appeal that he accepts he
made the statement, but it was a description of the route he
took from within
the car park to the forecourt. It did not encompass going onto Dominion
Road.
[9] In terms of the question I have posed for this section, there are
two responses. First, the Judge obviously has not found
driving on Dominion Road
to be proved to the criminal standard. Otherwise his Honour would have
expressed it differently from “far
more likely”. Second, it appears
there is scope to say what Mr Verschaffelt meant by “from around the
corner”
has been misinterpreted. The interpretation favoured by the
Judge was not put to Mr Verschaffelt in cross-examination
or otherwise
for his comment.
Is it necessary to prove Mr Verschaffelt drove on Dominion
Road?
[10] The third conviction route is to say that the Dominion Road
allegation is irrelevant, and that the route described by Mr
Verschaffelt
satisfies the charge. This is the option chosen by the Judge and supported by
the respondent on appeal.
[11] Section 56(1) of the Land Transport Act 1998, which creates the
drink driving offences, requires proof that an offender drove
on a
“road”. Section 2 of the Act defines road to include:
... a place to which the public have access, whether as of right or
not.
[12] Mr Verschaffelt’s circumstances undoubtedly satisfy these requirements. Further, it is settled law that a particular such as Dominion Road is not something requiring proof to the criminal standard. It is not an element of the offence. The
reality is that Mr Verschaffelt’s own explanation, even if fully
accepted, still proves the charge. Mr Verschaffelt now accepts
that.
[13] However, I consider that should not be the end of the matter. It is
clear that the prosecution intended to prove that Mr
Verschaffelt drove on
Dominion Road and failed. What it did was prove the same offence by different
means. However, the very limited
circumstances that have been proved fairly
raise the possibility of a discharge without conviction. Mr
Verschaffelt’s explanation
is of a person driving a very short distance,
not on a public road, realising they should not be driving and immediately
parking
the car. His breath alcohol level is at the lower end of the scale. He
advises it is the only time he has consumed alcohol in the
last 10 to 12
years.
[14] Mr Verschaffelt, acting for himself, did not know he could seek a
discharge without conviction. He says he raised
the possibility at an
early callover, but understandably on the facts then being alleged, was
informed by a Judge it was not
an option. The evidence has, however, moved on
since then.
[15] I consider the proper course is to allow the appeal and quash the
conviction.1
A rehearing is directed if the prosecution wish to pursue it. I suggest a
revised summary of facts be prepared which gives fair
consideration to the
evidence led at trial, and to my observations on that evidence. Mr Verschaffelt
would then have the opportunity
to accept the summary and seek a discharge
without conviction. I have made it plain to him that this is not to be taken as
any indication
of the likely success of the application, but he should have an
opportunity.
[16] The appeal is allowed and the conviction
quashed.
Simon France J
Solicitors:
Meredith Connell, Crown Solicitors, Auckland
1 Summary Proceedings Act 1957, s 121.
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