MITCHELL v NEW ZEALAND POLICE [2021] NZCA 417

MITCHELL v NEW ZEALAND POLICE [2021] NZCA 417 [31 August 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA325/2020[2021] NZCA 417BETWEEN CHEYMAN LEE MITCHELLAppellantAND NEW ZEALAND POLICERespondentHearing: 10 March 2021Court: Brown, Clifford and Goddard JJCounsel: K H Cook and P M D McDonnell for AppellantF R J Sinclair for RespondentJudgment: 31 August 2021 at 10.00 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] This appeal raises the question whether a person may be convicted of multiplecharges in respect of the same episode of driving. Mr Mitchell, who held a zeroalcohol licence, was found driving with a breath alcohol level of 649 micrograms perlitre of breath. He was charged under the Land Transport Act 1998 not only withdriving contrary to a zero alcohol licence (s 32(1)(b)) but also driving with excessbreath alcohol (s 56(1)).[2] In the District Court he pleaded guilty to the excess breath alcohol charge.In respect of the zero alcohol licence charge he entered a plea of previous convictionunder s 46(1) of the Criminal Procedure Act 2011 (the CPA). The District Court Judgeaccepted the special plea and dismissed the zero alcohol licence charge, reasoning thatthe two offences arose "from the same facts".1[3] The High Court reached the opposite conclusion and allowed an appeal.2The Court concluded that there was an appreciably different focus in the two drivingoffences, one being concerned with the prohibition of driving with excess bloodalcohol and the second involving a breach of the obligation to drive within therequirements of a licence.3 Mr Mitchell now seeks leave for a second appeal.[4] The issue on Mr Mitchell's appeal is which is the correct analysis? As the issueis of importance both for the parties and more generally, we grant leave to appeal.Statutory contextLand Transport Act provisions[5] Section 56(1) of the Land Transport Act to which the appellant pleaded guiltyrelevantly states:A person commits an offence if the person drives or attempts to drive a motorvehicle on a road while the proportion of alcohol in the person's breath, asascertained by an evidential breath test subsequently undergone by the personunder section 69, exceeds 400 micrograms of alcohol per litre of breath.[6] A zero alcohol licence is defined in s 2(1) in this way:zero alcohol licence means a licence that—(a) is issued to a person who is authorised to obtain the licence by a courtorder referred to in section 65B(1); and1 Police v Mitchell [2020] NZDC 1999 [District Court judgment].2 Police v Mitchell [2020] NZHC 1143 [High Court judgment].3 At [88].(b) authorises the person to drive on the condition that neither the person'sbreath nor the person's blood contains alcohol.[7] Section 5 requires drivers to be licensed. Section 5(1)(c) provides:(1) A person may not drive a motor vehicle on a road—(3) if the person is disqualified from holding or obtaining a driverlicence, or the person's driver licence is suspended or hasbeen revoked, or the driving is contrary to an alcoholinterlock licence, a zero alcohol licence, or a limited licence.The offence of contravening s 5(1)(c) is then found in s 32 of the Act.[8] A further provision touched on in the course of argument is s 57AA whichmaterially states:57AA Contravention of specified breath or blood alcohol limit by holderof alcohol interlock licence or zero alcohol licence(1) A person who holds an alcohol interlock licence or a zero alcohollicence commits an offence if the person drives or attempts to drive amotor vehicle on a road while the person's breath, as ascertained byan evidential breath test subsequently undergone by the person undersection 69, contains alcohol but the proportion of alcohol does notexceed 250 micrograms of alcohol per litre of breath.(4) A person who holds an alcohol interlock licence or a zero alcohollicence commits an offence if the person drives or attempts to drivea motor vehicle on a road while the proportion of alcohol in theperson's breath, as ascertained by an evidential breath testsubsequently undergone by the person under section 69, exceeds 250micrograms of alcohol per litre of breath.Double jeopardy[9] The issue on this appeal concerns a fundamental principle of the criminal lawthat a person should not be punished twice for the same wrong (non bis in idem).This principle is codified in s 26(2) of the New Zealand Bill of Rights Act 1990, whichstates:(2) No one who has been finally acquitted or convicted of, or pardonedfor, an offence shall be tried or punished for it again.[10] It is further articulated in s 10(4) of the Crimes Act 1961 which states:(4) No one is liable to be punished twice in respect of the same offence.[11] The common law pleas of previous conviction (autrefois convict) and previousacquittal (autrefois acquit) were narrow in scope, only available to a defendant whowas charged with the very same offence of which the defendant had previously beenconvicted or acquitted.4 Those pleas were codified in New Zealand in the Crimes Act:358 Pleas of previous acquittal and conviction(1) On the trial of an issue on a plea of previous acquittal or conviction toany count, if it appears that the matter on which the accused wasformerly charged is the same in whole or in part as that on which it isproposed to give him in charge, and that he might on the former trial,if all proper amendments had been made that might then have beenmade, have been convicted of all the offences of which he may beconvicted on any count to which that plea is pleaded, the Court shallgive judgment that he be discharged from that count.(Emphasis added.)[12] The test whether the previous charge was "the same in whole or in part" as thenew charge was also interpreted narrowly. While it did not have to be the sameoffence, the Court still focused on comparing all the legal elements of the previousand new charges.5 For example, in R v Brightwell the new charge of assault with ashotgun arose from the same facts as the original charge of presenting a shotgun at thevictim. Yet this Court found, having analysed the elements of the two offences, thatthe plea of previous conviction was not available.6[13] A new test was introduced in 2011 with ss 46 and 47 of the CPA.The explanatory note in the Criminal Procedure (Reform and Modernisation) Billsuggests an intentional widening of the scope for these special pleas:7The test for when a plea of previous conviction, previous acquittal, orpardon is available differs from that under the existing law. The new test4 See Connelly v Director of Public Prosecutions [1964] AC 1254 (HL) at 1339–1340; andR v Beedie [1998] QB 356 (CA) at 360–361.5 Rangitonga v Parker [2016] NZCA 166, [2018] 2 NZLR 796 at [29].6 R v Brightwell [1995] 2 NZLR 435 (CA) at 438–439.7 Criminal Procedure (Reform and Modernisation) Bill 2010 (243–1) (explanatory note) at 25.(see clauses 43 and 44) is intended to bring greater certainty as to theavailability of the special pleas.[14] The focus of this appeal is s 46, which provides:46 Previous conviction(1) If a plea of previous conviction is entered in relation to a charge, thecourt must dismiss the charge under section 147 if the court issatisfied that the defendant has been convicted of—(a) the same offence as the offence currently charged, arisingfrom the same facts; or(b) any other offence arising from those facts.(2) Subsection (1) does not apply if—(a) the defendant was convicted of an offence and is currentlycharged with a more serious offence arising from the samefacts; and(b) the court is satisfied that the evidence of the more seriousoffence was not readily available at the time the chargingdocument for the previous offence was filed.[15] The new test allows a plea of previous conviction for another offence "arisingfrom the same facts". Section 47 addresses the plea of previous acquittal and uses thesame language. In Rangitonga v Parker, which concerned s 47, this Court acceptedthat the reference to offences arising from the same facts is intended to apply to caseswhere there is a common punishable act central to both the previous and new charge.8The Court explained:The new section focuses on the substance of the facts giving rise to theprevious and new charges rather than a fine-grained comparison of eachelement of the charge.[16] The Court considered that by focussing on the substance of the facts givingrise to the previous and new charges an unduly technical approach to the availabilityof the special plea would be avoided. It observed that in most cases it ought to bestraightforward to identify the central punishable acts or omissions by reference to thecentral elements of the offences.9 Subsequently in Filitonga v R this Court held thatthe analysis in Rangitonga v Parker applied equally to s 46.108 Rangitonga v Parker, above n 5, at [41].9 At [43].10 Filitonga v R [2017] NZCA 492, [2017] NZAR 1667 at [16].The judgments belowDistrict Court[17] On 28 November 2019 Mr Mitchell initially attempted to plead guilty to boththe s 56 charge and the s 32 charge. However Judge Neave invited him to plead guiltyto only the former charge and then enter a plea of previous conviction to the latter.The issue whether that plea was available was subsequently heard by Judge O'Driscollwho ruled that the special plea of previous conviction pursuant to s 46 of the CPAapplied to the s 32 charge and dismissed it accordingly.[18] The Judge reviewed the conflicting District Court decisions involving suchcharges under the Land Transport Act. This included in particular Police v Smithwhere Judge Sainsbury concluded that the facts giving rise to each offence weresignificantly different reflecting the different purposes and mischief of the respectivesections,11 and Police v Tindall where Judge Neave came to the different conclusionthat the essential facts of the two offences were virtually identical, stating:12The summaries of facts make no distinction between the two offences in termsof what is described as the actions of the defendant. To my mind, there isabsolutely no difference between the acts of the defendant which give rise tothe offence in each case. The only difference essentially relates to matters ofstatus. Or perhaps to put it another way, the only difference relates to theamount of alcohol found to be in the defendant's blood. In respect of one, anyalcohol will suffice. In respect of the other, it must be over a particular limit.However, none of those factors relate to any actions on the part of thedefendant.[19] While expressing the view that there are clear policy reasons for finding thatthe fact that a defendant has obtained a zero alcohol licence is a fact that gives rise tothe s 32 offence but not to the s 56 offence, such that they arise from different facts,the Judge considered that that was an issue for the High Court to consider.13 The Judgeconcluded that the core punishable act for both ss 32 and 56 is that a defendant drovea vehicle on a road with alcohol in his system.14 Hence he found the plea of previous11 Police v Smith [2018] NZDC 9057. The charges were listed as s 56(1) and s 56AA(4) but theJudge's reasoning compared ss 56 and 32.12 Police v Tindall [2018] NZDC 22252 at [27].13 District Court judgment, above n 1, at [109].14 At [107].conviction applied to the s 32 charge which he dismissed at Mr Mitchell's nextappearance.High Court[20] The contrary conclusion was reached by Osborne J. The Judge highlightedthree scenarios:15(a) In Rangitonga the core punishable acts — sexual intercourse in relationto an alleged rape and punching and strangling in relation to an allegedinjuring — were significantly different, although the issue of lack ofconsent was common to both charges.(b) In Filitonga, by contrast, there was an identifiable common punishableact in relation to both the charges in that the defendant had unprotectedsex, while knowingly HIV positive, being reckless as to theconsequences. The Judge drew attention to the fact that this Court'sanalysis established that the focus is not solely on the "act" itself, as theoverarching Rangitonga test might suggest, but takes into account othercore features of the offending, namely the defendant's knowledge of hiscondition and his recklessness as to its consequences.(c) Finally, this Court in O'Reilly v Chief Executive of the Department ofCorrections adopted the analogy of a person driving a car which doesnot have a warrant of fitness and is not registered.16 While the centralfact of driving may be common, it did not make the situation one wherethere is a common punishable act. Rather the omission in each case isentirely different, one relating to a warrant of fitness and one relatingto registration.15 High Court judgment, above n 2, at [78]–[80].16 O'Reilly v Chief Executive of the Department of Corrections [2018] NZCA 313, [2018]NZAR 1327 at [18].[21] The Judge then observed:[81] The analogy identified by the Court of Appeal in O'Reilly serves toemphasise that the concept of "a common punishable act central to bothcharges", adopted in Rangitonga, is a convenient summation, rather than onewhich requires a single focus on "acts" alone. What the provisions themselvesrequire is an examination as to whether the "facts" are the same.Applying that test Osborne J was satisfied that the two offences Mr Mitchell faced didnot arise from the same facts as required for a special plea. With reference to earlierdecisions he said:[83] The analysis which has led to the acceptance of a special plea in anumber of cases, including Tindall and the present case, has understandablyidentified as common features of the defendants' offending that there has beendriving, it has been on a road, and the defendant is affected by an amount ofalcohol. But such an analysis is to ignore the very elements which make theconduct punishable. In other words, there has been a successful identificationof common core facts but not an identification of common core punishableacts.AnalysisCentral punishable acts/omissions[22] Mr Cook, counsel for Mr Mitchell, contended that this appeal epitomises therationale behind s 46 in that the charges have arisen out of the same set of factswhereby Mr Mitchell drove a motor vehicle with excess breath alcohol. He submittedthat Mr Mitchell could not have been found guilty of driving with excess breathalcohol contrary to s 56 without also violating s 32 on account of his licence status.Thus the actus reus of both charges was the same. There was no further series ofevents.[23] He emphasised that driving with excess breath alcohol, which he contendedwas the punishable act, is central to both provisions which require a certain level ofalcohol per litre of breath. While the breath alcohol level required for the two chargesare different (for s 32 anything more than zero will suffice), the method for provingthe charges relies on the same fact. The breath alcohol test is the core fact and theonly evidence which is being relied on to prove both charges. The punishment ofMr Mitchell twice through the two separate charges was said to be the mischief whichthe s 46 special plea is intended to remedy.[24] Mr Cook submitted that Osborne J erred in placing reliance on Rangitonga andO'Reilly for the reason that in both cases the charges arose out of different facts.He advocated for the approach in Tindall which if adopted would support theconclusion that s 46 applied to Mr Mitchell's situation.[25] That criticism of the High Court judgment is misplaced. As the Courts-MartialAppeal Court remarked in R v Arnold:1737 There is a difference (and sometimes a great deal of difference)between (i) two charges being founded on the same facts and (ii) two chargessharing some facts in common.We agree with Mr Sinclair, counsel for the respondent, that if different punishable actsmerely engage a common fact, the offences do not arise from the "same facts" asprescribed in s 46(1). To say that offences share a common fact or facts is not thesame thing as saying they involve "common punishable acts".[26] This point was developed by Osborne J in his identification of the different keyelements in the two offences in question: the excessive alcohol level in the s 56 charge,and for the s 32 charge the possession of a zero alcohol licence (without which the actof driving on the road with merely some level of breath alcohol would not have beenpunishable).18 As the Judge explained:[86] There is a suggestion in at least some of the District Court judgmentsthat to draw the distinction between the two offences which I have identifiedis to undertake the "fine-grained comparison of each element of the charges"which the Court of Appeal in Rangitonga rejected. But it is not. The excessivelevel of breath alcohol and the breach of the licence entitlements arerespectively at the core of the two charges. The Court of Appeal's drivinganalogy in O'Reilly serves to emphasise that the status of a vehicle – whetherit has a warrant of fitness or is registered – is an aspect of the core punishablefacts. So, too, on my analysis, is the licensing status of the driver when theoffence charged is driving in breach of a licence condition.[27] Given the confusion reflected in the several authorities to which we werereferred, it is useful to compare the Venn diagrams contained in Mr Sinclair'ssubmissions. The first depicts the analogy explored in O'Reilly where the act of17 R v Arnold [2008] EWCA Crim 1034, [2008] 1 WLR 2881.18 High Court judgment, above n 2, at [84]–[85].driving is common but there is no other common fact for the two offences associatedwith that act:19[28] The second diagram illustrates Osborne J's analogy of a publican sellingalcohol to a minor on Good Friday which would contravene the prohibitions in theSale and Supply of Alcohol Act 2012 of selling or supplying alcohol on licensedpremises on certain days and selling or supplying alcohol to a person who is under thepurchase age:2019 At [20(c)] above.20 High Court judgment, above n 2, at [87].[29] The circumstances of the instant appeal were depicted in this manner:[30] We agree with Mr Sinclair's submission that where a person is both subject toa zero licence and exceeds the breath/blood alcohol level in s 56, the presence of anoverlapping fact — driving with alcohol — does not change the O'Reilly conclusion.No particular level is required in one parcel of conduct whereas a person's licencestatus forms no part of the other parcel of conduct. Neither parcel subsumes the other.[31] Responding to Mr Cook's submission concerning the method of proof of thecharges21 Mr Sinclair submitted, and we agree, that the manner of proof of a commonfact does not affect the distinction between the core punishable acts. Hence theproposition in cases such as Police v Ruki that the breath alcohol level is essential toboth offences22 serves to conflate the proof of the fact with the function that the factplays.[32] Mr Sinclair went on to explain that there is a rational justification forconvictions on both offences having regard to the structure of the Land Transport Actand its hierarchy of penalties. Section 32 is in pt 5 which is concerned with offencesrelating to driving (other than alcohol related offences) whereas s 56 is in pt 6 whichconcerns driving offences involving drink or drugs. In both provisions there is a lowerset of penalties when a person is convicted for a first or second offence and a higherset of penalties for a third or subsequent offence.2321 At [23] above.22 Police v Ruki [2019] NZDC 24589 at [9].23 In both sections the third or subsequent offence carries a penalty of imprisonment for a maximumof two years, or a maximum fine of $6,000, and a minimum disqualification of one year:Land Transport Act 1998, ss 32(4) and 56(4).[33] Mr Sinclair submitted that if dual convictions are not recorded in respect ofconduct constituting offences under both ss 32 and 56 there is a potential for distortion,a point he illustrated by reference to two scenarios. In the first scenario a person'soffence history involves a breach of a zero alcohol licence and two other breaches ofs 32. This would cause the higher penalty provision to be engaged. However ifa special plea is allowed for the zero alcohol offence (on account of a conviction forexcess breath alcohol under s 56) the higher penalty would not be accessible, as hesubmitted it should be. The offence history would only record two breaches of s 32(1):s 32 s 56Breach of zero licence EBAe.g. Driving while disqualifiede.g. Driving while disqualified[34] In the alternative scenario, where a breach of a zero alcohol licence becomesthe basis for a special plea displacing a s 56 conviction, the offence history can bedepicted in this way:s 32 s 56Breach of zero licence EBAEBAEBAHe contended that if a person can, by entering a special plea, in effect strike outa conviction from a column in which a conviction should be recorded, the intendedoperation of the legislation is disrupted.[35] Mr Sinclair further submitted that permitting an election between the twooffences would undermine Hughes v R where cumulative sentences were imposed fordriving while disqualified and driving with excess breath alcohol in relation to thesame incident.24 This Court confirmed that the two offences were "different in kind",24 Hughes v R [2012] NZCA 388.one being concerned with road safety and the other with the enforcement of Courtorders, and they required the prosecution to prove different facts.25[36] We agree that the rationale adopted in Hughes is also applicable on the presentappeal. Mr Mitchell imperilled the safety of other road users by driving with excessbreath alcohol and he defied a Court-imposed licence condition. Dual convictions notonly fairly capture, but also appropriately label, his offending. Consequently we donot favour the analysis which seems to have found favour with the Supreme Court ofSouth Australia in two authorities advanced by Mr Cook, Arthur v Police26 and Jonesv Police.27[37] For these reasons we endorse the conclusion of Osborne J and we dismiss theappeal. However, having had the benefit of thorough submissions from both counseland given the topicality of the issue, we will briefly comment on some related themesreferred to in argument.Other mattersConcurrent offences under the Land Transport Act[38] Section 2(1) of the Land Transport Act contains a definition of"concurrent offence":28concurrent offence means an offence—(a) that is not a qualifying offence; and(b) that occurred as part of the same series of events as the facts that gaverise to the person's conviction for a qualifying offence; and(c) for which the offender may or must be disqualified from holding orobtaining a driver licence under this Act or under section 124 of theSentencing Act 2002A qualifying offence is one described in s 65AB(1). It includes ss 56(1) and (2) and57AA.25 At [22] and [24].26 Arthur v Police [2008] SASC 213, (2008) 101 SASR 529 at [42].27 Jones v Police [2019] SASC 36, (2019) 135 SASR 255 at [51].28 Introduced by s 5 of the Land Transport Amendment Act 2017.[39] Mr Cook submitted that the concept of concurrent offence recognises that oneoffence may arise from the "same series of events as the facts that give rise to another".He argued that the present circumstances should not be construed as amounting toconcurrent offences because the charges did not arise from the same series of events.Rather they arose out of the same set of facts.[40] Mr Sinclair responded that those definitions neither created nor confined thepossibility of concurrent offences but simply recognised that one offence may arise inthe manner described at (b) of the definition. The 2017 amendment clarified what isto happen in the circumstance of a particular combination of convictions. As heexplained, when one of the alcohol offences listed in s 65AB(1) is committed in anaggravated form, an alcohol interlock sentence becomes mandatory under s 65AC.When there is also a concurrent offence, there is a need to explain how the twosentences mesh together.[41] Thus for example, if a person commits one of the licensing offences unders 32(1) the usual period of mandatory disqualification does not apply if that offence isconcurrent with a qualifying offence. There would instead be the mandatory interlocksentence for the qualifying offence and s 65AH explains how other aspects of the twosentences should be assessed. However Mr Sinclair made the point that, even withinthis narrow range of situations, a conviction for breach of a zero alcohol licence mayarise concurrently with a qualifying offence: for example, by a combination ofs 32(1)(b) with the offence of driving while incapable of having proper control ins 58(1).The implications of s 57AA[42] Mr Cook submitted that Parliament's enactment of s 57AA in 201229 indicatedthat in situations where a person holds a zero alcohol licence and has exceeded 250micrograms, thus breaching the terms of their licence, only one charge is necessary.He pointed out that s 57AA(4) provides an aggravating higher penalty for excessivebreath or blood alcohol results exceeding 250 milligrams of alcohol per litre of breathor further pursuant to s 57AA(5) 50 milligrams of alcohol per 100 millilitres of blood.29 Land Transport (Road Safety and Other Matters) Amendment Act 2011, s 26.Hence he contended that, as s 57AA achieves the same mischief as ss 32 and 56,it indicates not only that concurrent offences are not appropriate in situations such asthe present but suggests that a single charge is sufficient to reflect the criminality ofthe conduct.[43] Mr Cook drew attention to the judgment of Van Bohemen J in Ashworth vPolice30 which was subsequent to Osborne J's decision in the present case. MrAshworth, who like Mr Mitchell was subject to a zero alcohol licence, was stopped bypolice and returned a breath test of 600 micrograms of alcohol per litre of breath. Hewas charged under ss 56(1) and 57AA(4). While expressing agreement with theconclusion of Osborne J, the Judge ruled that convictions for both the charges againstMr Ashworth offended the principle of double jeopardy in s 10(4) of the Crimes Actand a special plea was available.31 Mr Cook supported the conclusion in Ashworth butsubmitted Van Bohemen J's perception of Osborne J's decision was erroneous.[44] While recognising that the legislative history of s 57AA contains noexplanation of how it relates to the existing offence regime, Mr Sinclair submitted thatthere continue to be valid reasons, again relating to available penalties, for invokingthe existing licence and excess breath alcohol offences.[45] He explained that if a zero licence holder returns a reading of below250 micrograms per litre there are differences in penalty. Charging under s 32potentially engages a higher fine and ensures a disqualification of at least six months.32Further, the availability of the higher penalties for third and subsequent offences underss 32 and 56 depends on there being at least three convictions for offences "against"s 32(1) or s 56(1) and (2). On the face of it that required convictions for offences laidunder those sections directly.[46] On the basis of that interpretation the same recording problems earlier referredto33 could arise. Thus if convictions under s 57AA and ss 32/56 are mutually exclusive30 Ashworth v Police [2020] NZHC 1587.31 At [37].32 Although the mandatory disqualification does not apply if an order is made under s 65 or analcohol interlock sentence is ordered under s 65AC(1).33 At [33]–[34].alternatives, a s 57AA conviction has, for recording purposes, much the same effect asallowing a special plea. Conduct that would otherwise register as offences under bothss 32 and 56 would not be recognised. By way of example, if a person has two existingexcess breath alcohol convictions, Mr Sinclair argued it would make little sense tocharge a third excess breath alcohol (combined with a zero licence breach) unders 57AA. The more logical course would be to charge the aggravated offence unders 56 and the licence breach under s 32. Mr Sinclair observed that such a course mighthave been followed in Ashworth.[47] In our view the most that can be said is that several provisions now co-exist inthe legislation, and the choice of charges necessarily remains a matter of discretion forthe prosecutor. However, for the reasons advanced by Mr Sinclair we recognise thatit may not always be appropriate for excess breath alcohol in combination with breachof zero licence to be charged simply under s 57AA.Result[48] The application for leave to appeal is granted.[49] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent