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Verschaffelt v Police [2014] NZHC 1370 (19 June 2014)

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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