Alexander v Police [2014] NZHC 2574 (21 October 2014)

Last Updated: 23 October 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000034 [2014] NZHC 2574

MARK ANDREW ANTHONY ALEXANDER

v

_{NEW ZEALAND POLICE}

Hearing:	15 October 2014
Appearances:	C D Eason for Appellant S J Jamieson for Crown
Judgment:	21 October 2014

_{JUDGMENT OF DUNNINGHAM J}

[1] Mr Alexander, after entering a guilty plea, was convicted, in the

District Court at Christchurch, on a charge of driving with excess breath alcohol.¹

[2] He now appeals his conviction on the basis that a miscarriage of justice has occurred, because:

(a) the statement of facts did not disclose that at least two hours had elapsed between the appellant driving and the administration of the breath screening test; and

(b) evidence as to breath alcohol levels was unlawfully obtained and should have been ruled inadmissible as evidence against the appellant.

¹ _{Land Transport Act 1998, s 56(1).}

ALEXANDER v NEW ZEALAND POLICE [2014] NZHC 2574 [21 October 2014]

How did the charge arise?

[3] On the afternoon of 17 March 2014, Mr Alexander acknowledges that he had been drinking in a bar. He drove to the Countdown supermarket at the Northwood Supa Centre in Christchurch where he crashed his car into a pole or other fixed object, and damaged the radiator.

[4] He intended to buy alcohol from Countdown. However, staff considered he was intoxicated and refused to sell him alcohol. A copy of the supermarket’s record of that incident, which occurred around 7.00 pm, was annexed to Mr Alexander’s affidavit. It describes what happened as follows:

Gentleman has been in twice within a week. He has walked down the liquor aisle staggering, so I told him he would not be able to have any alcohol. ... I asked him to leave the store.

[5] An event chronology recording police communications in relation to Mr Alexander’s movements that night, shows that, at around 7.30 pm, the Countdown Store Manager had observed an intoxicated male “wandering around in the car park looking for his vehicle”. Countdown staff advised police that they would keep observations on the car and call immediately on 111 if the male was seen getting into the driver’s seat.

[6] Mr Alexander says that he then walked home, which was only a five to

10 minute walk from the Northwood Supa Centre. He says he drank some more beer (his oral evidence to the Court was he had three beers, although his affidavit said four to five beers), and then lay down on his bed fully clothed and fell asleep.

[7] He then says he was awoken by a police officer. He does not recall a breath screening test being administered. He was asked to accompany the policeman to the station where an evidential breath test was administered registering a breath alcohol level of 795 micrograms of alcohol per litre of breath. That breath test was administered at 9.53 pm.

What happened at Court?

[8] At Mr Alexander’s request he was summonsed to Court promptly, on

20 March 2014. At Court he was assisted by a duty solicitor, Ms Barrell. Her evidence was not challenged. She explains that he disputed some aspects of the summary of facts. In particular, she says:

He told me that he realised he should not drive and had walked home to his house and police arrived at his house later that evening and he underwent a breath test. He told me that he had had a few beers after he got home so his breath alcohol level at the time he was tested would be different to what it had been when he had last driven his vehicle.

She advised him that he:

... could, and should, adduce evidence to show that he was drinking at home after driving to challenge the accuracy of the level at the time of driving.

[9] She also noted:

That the appellant raised with me the issue of police arriving at his home address to conduct an evidential breath test quite some time after he had been driving.

[10] In terms of the circumstances in which the police came into his room to administer the evidential breath test, she says:

His response was that he thought his flatmate must have let them in.

[11] Her advice was that he should enter a not guilty plea to the charge and:

That would enable him to raise all issues with the police at the case management conference, including the late testing and what occurred at his house in terms of the taking of evidence.

She explains that after having taken his instructions, she filled in a Registrar’s

remand slip with a not guilty plea endorsed thereon and requested another date.

[12] However, it appears it took some time before Court staff were able to deal with the paperwork and, in the meantime, Mr Alexander had rethought his position. He explained to Ms Barrell that he wanted it all over with on the day and that he wanted to have the matter called in Court before the Judge so he could change his plea to one of guilty. Ms Barrell discussed with him the consequences of a guilty

plea, including the confiscation provisions of the Sentencing Act 2002 and the disqualification from driving. Her evidence is:

He told me he understood that and wanted that to happen so he could have it over with.

[13] Accordingly, Mr Alexander instructed her to change his plea. The matter was called and a guilty plea was entered. The transcript of legal discussion makes it clear that Ms Barrell did address the Court on issues he had asked her to raise, including that he deliberately left his car in the car park, rather than that he was unable to find it. She also referred to the fact that after leaving his car, he had some drinks at home and went to bed and that he was in bed when the police came and carried out the breath testing procedures.

Jurisdiction to hear the appeal

[14] The jurisdiction to hear this appeal arises under s 232 of the Criminal

Procedure Act 2011. That section provides:

232 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a) in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c) in any case, a miscarriage of justice has occurred for any reason.

(3) The first appeal court must dismiss a first appeal under this subpart in any other case.

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

[15] The circumstances in the present case are covered by the provisions of s 232(5) which confirm that a trial includes a proceeding in which the appellant pleaded guilty.

[16] In order to succeed on appeal, I must be satisfied that a miscarriage of justice, as defined in s 232(4) has occurred for any reason.

[17] The Crown’s submissions focused on the high threshold that must be crossed to establish a miscarriage of justice when seeking to appeal a conviction entered after a plea of guilty. In R v Merrilees, the Court of Appeal held: ²

This Court has said that it is only in “exceptional circumstances” that an appeal against conviction will be entertained after a plea of guilty, and that an appellant must show that a miscarriage of justice will result if the conviction is not overturned.

[18] Expanding on this, at paragraphs [33] and [34], the Court in Merrilees, stated:

[33] The exceptional circumstances in which an appeal against conviction may be pursued after entry of a plea of guilty are described by this Court in R v Le Page (above) at [16]-[19]. It has to be shown a miscarriage of justice will result if a conviction is not overturned, and where an appellant fully appreciates the merits of his position and makes an informed decision to plead guilty, a conviction cannot be impugned. It was said that a miscarriage will be indicated in three broad situations, namely:

[17] ....The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element....

[18] A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged....

[19] The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law....

[34] There will be a further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.

[19] Mr Eason, for the appellant, tentatively raised the question of whether, the term “miscarriage of justice” should, under the Criminal Procedure Act, be read as subject to the same constraints as articulated in R v Le Page, and Merrilees, which were decided prior to the enactment of the Criminal Procedure Act. ³

[20] I can see no reason why, when a well established term such as “miscarriage of justice” is used, it should not be interpreted in light of existing authoritative case law on how that term is to be applied. There is nothing in the Criminal Procedure Act to suggest any intention to depart from existing and well established principles on the threshold for establishing a miscarriage of justice following a guilty plea. Accordingly, I consider Le Page and Merrilees set out the relevant threshold test when deciding whether a miscarriage of justice has occurred when the appellant has pleaded guilty.

Has a miscarriage of justice occurred?

[21] Affidavit evidence was filed in support of this appeal from Mr Alexander, Ms Barrell, his lawyer in the District Court, and Mr Small, who at the time was a police sergeant and who administered the evidential breath test on Mr Alexander on the night in question.

[22] Much of the questioning was focused on the time delay between Mr Alexander’s driving and the administration of the evidential breath test, and on the circumstances in which the police officer came to be present in Mr Alexander’s bedroom and asked him to undertake the breath screening test.

[23] While these issues took time to hear, I am not satisfied they are determinative of the appeal. I accept, as did Ms Barrell, that the time delay between when Mr Alexander was driving, and when he was breath tested, was significant and allowed time for him to have further alcohol. That brings into question the reliability of the measured breath alcohol level and the possibility that he could have defended the charge on this basis. I also note, though, for completeness, there was also ample evidence that Mr Alexander was heavily intoxicated when he was at the supermarket, evidenced by the refusal to serve him alcohol, the observations of store staff, the crashing of his car, and his own admission that he decided to walk home because he realised he should not drive.

[24] I am therefore proceeding on the basis that had Mr Alexander chosen to, he could have called evidence to dispute whether the breath alcohol reading relied upon for the prosecution fairly reflected his breath alcohol reading at the time of driving.

[25] I am less enamoured with the argument that the evidence obtained by the breath alcohol test was unlawful and would have been ruled inadmissible as evidence against the appellant.

[26] The gist of the appellant’s argument was that the flatmate who admitted the police constable to Mr Alexander’s home and accompanied him up to Mr Alexander’s bedroom had “no authority whatsoever to invite anybody into my home”. However, Mr Small’s evidence was that he understood the gentleman answering the door gave him authority to go in and to proceed to Mr Alexander ’s bedroom and had he been asked to leave at any point he would have. I am therefore satisfied that the entry was made pursuant to an implied licence. There is no suggestion in the evidence that the authority to enter, and then to check the bedroom to see if Mr Alexander was there, was revoked either by the flatmate or by Mr Alexander himself. In short, I could see no evidence to suggest that the kind of implied licence to enter, which was upheld in New Zealand Police v McDonald, was

not also available in the present case. ⁴

[27] However, even assuming one or both of these points were arguable in Mr Alexander’s defence, the more crucial issue is whether the circumstances in which he pleaded guilty were such that a miscarriage of justice has occurred. What that requires was some error in the advice given, or some misunderstanding of it, such that the appellant entered a guilty plea in error and it would be a miscarriage of justice to allow the guilty plea to stand.

[28] Here, Mr Eason has accepted that Ms Barrell discharged all of her duties appropriately.

[29] Ms Barrell was aware that there was a time delay between the driving and the administration of the evidential breath test, and that the evidential breath test was administered by a policeman who had entered into the appellant’s bedroom. She had advised the appellant to plead not guilty and he had initially done so. The appellant’s decision to plead guilty was made in spite of that advice.

[30] It is also clear that Mr Alexander’s oral evidence before the Court suggesting he did not really understand what he was doing nor the way the system works, is implausible when considered in light of the evidence of the circumstances of

20 March 2014. Ms Barrell clearly explained the consequences of pleading guilty, including the fact that he would immediately be disqualified from driving and his car would be confiscated. He advised that he understood that and wanted that to happen so he could have it over with. He instructed her to change his plea and he signed the summary of facts confirming that instruction, albeit making two changes to the summary of facts to correct the level of the alcohol breath reading and to deny the statement that he “could not remember where his car was parked”.

[31] Mr Alexander was unable to articulate what misunderstanding there was, if any, about instructing his lawyer to plead guilty. She did as requested, make submissions on the factual issues he had discussed with her, including the delay and the fact he had had further alcohol to drink since driving, but it is impossible to see how, in the face of his express instruction to enter a guilty plea and her discussion of the consequences of that, that he could have expected any different outcome from that which resulted.

[32] In short, I am satisfied that this is one of those cases where there is simply a later regret over the entering of a guilty plea, even though it was given after appropriate advice from counsel and in full knowledge of the consequences of entering the guilty plea.

Conclusion

[33] An appeal against conviction following the entry of a guilty plea will only be allowed in exceptional circumstances, particularly where a plea was entered with the benefit of legal advice. The present circumstances do not meet the threshold. The appellant, despite counsel’s advice to enter a not guilty plea and her explanation of the consequences of pleading guilty, chose to enter a guilty plea. The fact that he subsequently wishes to resile from that decision does not amount to exceptional circumstances which justify the appeal being allowed.

[34] Accordingly, the appeal is dismissed.

Solicitors:

C D Eason, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch