CHEYMAN LEE MITCHELL v NEW ZEALAND POLICE [2023] NZSC 104

CHEYMAN LEE MITCHELL v NEW ZEALAND POLICE [2023] NZSC 104 [11 August 2023]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 116/2021[2023] NZSC 104BETWEEN CHEYMAN LEE MITCHELLAppellantAND NEW ZEALAND POLICERespondentHearing: 10 May 2022Court: Winkelmann CJ, O'Regan, Ellen France, Williams and Kós JJCounsel: K H Cook, P C McDonnell and S J Bird for AppellantF R J Sinclair and Z A Fuhr for RespondentJudgment: 11 August 2023JUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONSPara NoWinkelmann CJ, O'Regan, Williams and Kós JJ [1]Ellen France J [71]WINKELMANN CJ, O'REGAN, WILLIAMS AND KÓS JJ(Given by Kós J)Table of ContentsPara NoBackground [3]Essential statutory context [9]Lower Court judgments [14]District Court judgment [14]High Court judgment [17]Court of Appeal judgment [20]Submissions [25]Mr Mitchell's submissions [25]Police submissions [31]Issue [35]How we got to s 46(1)(b) [37]Legislative redevelopment of the special pleas [51]Does s 46(1) preclude Mr Mitchell's conviction on the secondcharge? [53]Our assessment [60]Result [70][1] It is a fundamental principle of law that a person not be tried or punished againfor an offence on which they have been acquitted or convicted, a right now affirmedin s 26(2) of the New Zealand Bill of Rights Act 1990. Section 46(1) of theCriminal Procedure Act 2011 (the CPA) provides a special plea of"previous conviction" where a defendant has been convicted of the same offence asthe offence currently charged, arising from the same facts, or any other offence arisingfrom those facts. Section 47 of the CPA creates a further special plea—ofprevious acquittal—but it is s 46 we are concerned with in this appeal.[2] The question here is whether that plea applies to Mr Mitchell. His failure ofan evidential breath test gave rise to two charges: driving with a breath alcohol levelexceeding 400 micrograms per litre of breath, and driving contrary to a zero alcohollicence. He pleaded guilty to the first charge. Does s 46(1) now apply to the second?Background[3] On 18 December 2017, Mr Mitchell received his second conviction for drivingwith a breath alcohol level over 400 micrograms per litre of breath.1 He wasdisqualified from driving for seven months, fined $400 and an order was made for theconfiscation of his vehicle. After the disqualification period lapsed, Mr Mitchellobtained a zero alcohol licence, which permitted him to drive on the condition thatneither his breath nor his blood contained alcohol.[4] On the evening of 18 September 2019, Mr Mitchell consumed alcohol at afriend's address. He decided to drive home, and at 2.47 am the next morning he waspulled over by the police on Brougham Street, Christchurch. An evidential breath testshowed a sample of his breath contained 649 micrograms of alcohol per litre of breath.1 His first such conviction occurred on 17 June 2014.[5] On 3 November 2019, Mr Mitchell was charged under ss 32(1)(b) and 56(1)of the Land Transport Act 1998 (the LTA). The s 32(1)(b) charge was that he drovecontrary to a zero alcohol licence. The s 56(1) charge was that he drove with a breathalcohol level that exceeded 400 micrograms of alcohol per litre of breath.[6] Later that month, on 28 November, Mr Mitchell attempted to plead guilty toboth charges in the District Court. Judge Neave however invited his counsel to entera guilty plea to only one of the charges. A conviction was entered on the s 56(1)charge, and a special plea of "previous conviction" was then entered on his behalf onthe remaining s 32(1)(b) charge, pursuant to s 46(1)(b) of the CPA. This triggered theneed for a judge to then determine the availability of that special plea.2[7] On 10 February 2020, Judge O'Driscoll held that the plea of"previous conviction" applied to the s 32(1)(b) charge.3 On 21 February, the Judgedismissed the s 32(1)(b) charge and sentenced Mr Mitchell on the s 56(1) charge.4 Hereceived 100 hours community work and a supervision sentence of 12 months, with aspecial condition that he attend and complete any recommended intervention foralcohol and drug use to the satisfaction of a probation officer. The Judge alsodisqualified Mr Mitchell from driving for 12 months and one day and ordered that, atthe appropriate time, Mr Mitchell could again apply for a zero alcohol licence.[8] On 6 March 2020, the Crown applied for leave to appeal Judge O'Driscoll'ssubstantive judgment.5 Osborne J granted leave to appeal and allowed the appeal,concluding that the Judge erred in finding that the plea of "previous conviction"applied to the s 32(1)(b) charge.6 Mr Mitchell obtained leave to appeal to theCourt of Appeal,7 but his appeal was dismissed.8 He was then granted leave to appealby this Court.92 Criminal Procedure Act 2011 [CPA], s 49.3 New Zealand Police v Mitchell [2020] NZDC 1999 [DC substantive judgment].4 New Zealand Police v Mitchell [2020] NZDC 3276.5 See CPA, s 296.6 New Zealand Police v Mitchell [2020] NZHC 1143 [HC judgment].7 See CPA, s 303.8 Mitchell v New Zealand Police [2021] NZCA 417 (Brown, Clifford and Goddard JJ)[CA judgment].9 Mitchell v New Zealand Police [2021] NZSC 180.Essential statutory context[9] We set out here the essential statutory context needed to understand the coursethis case has followed. At this point we canvass just the four provisions alreadyreferred to.[10] First, Mr Mitchell was convicted under s 56(1) of the LTA. It creates anoffence: if the person drives or attempts to drive a motor vehicle on a road while theproportion of alcohol in the person's breath, as ascertained by an evidentialbreath test subsequently undergone by the person exceeds 400 microgramsof alcohol per litre of breath.The relevant elements of the charge are, therefore, two:(a) driving (or attempting to drive) a motor vehicle on a road;(b) with breath alcohol exceeding 400 micrograms of alcohol per litre ofbreath.The maximum sentence on a third conviction under a s 56 charge is two years'imprisonment or a fine not exceeding $6,000.10[11] Secondly, the other charge was under s 32(1)(b), which creates an offence "ifthe person drives a motor vehicle on a road contrary to [a] zero alcohol licence".Unsurprisingly, it was a condition of Mr Mitchell's zero alcohol licence that his breathnot contain alcohol while driving.11 The relevant elements of the s 32(1)(b) chargewere therefore:(a) driving a motor vehicle on a road;(b) with breath containing alcohol; and(c) while subject to a zero alcohol licence.The maximum sentence on a first or second conviction under s 32(1) is three months'imprisonment or a fine not exceeding $4,500.1210 Land Transport Act 1998 [LTA], s 56(4)(a). The court must also order the person to be disqualifiedfrom holding or obtaining a driver licence for more than one year: s 56(4)(b).11 Section 11(d).12 Section 32(3)(a). The court must also order the person to be disqualified from holding or obtaininga driver licence for six months or more: s 32(3)(b).[12] Thirdly, s 46 of the CPA provides for a special plea in the case of previousconviction: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 is satisfiedthat 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.Subsection (2) might apply, for instance, where the victim of an assault (for which aconviction had been entered) later died, elevating the assault to the more seriousoffence of murder or manslaughter. Section 47 is in the same terms as s 46, for a"previous acquittal", but it does not have an equivalent to subs (2). Later in thisjudgment we discuss the juridical and legislative path leading to s 46.[13] Fourthly, there is s 26(2) of the Bill of Rights Act:No one who has been finally acquitted or convicted of, or pardoned for, anoffence shall be tried or punished for it again.We return to this provision later in this judgment.1313 See [60]–[61] below.Lower Court judgmentsDistrict Court judgment[14] Judge O'Driscoll framed the issue as whether "the s 32 charge arises from thesame facts as the s 56 charge".14 To determine the availability of the special plea, hetraversed the historic approach to double jeopardy in New Zealand. He lookedparticularly at the introduction of ss 46 and 47 and the case law under those provisions,with a focus on cases involving charges of driving with excess blood alcohol andcontrary to a zero alcohol licence. In particular, he compared conflicting authoritiesin the District Court: New Zealand Police v Tindall and New Zealand Police v Smith.15[15] In Tindall, Judge Neave determined that the defendant, having pleaded guiltyto charges under s 56 of the LTA, was entitled to rely on the special plea under s 46 ofthe CPA for charges under s 32 of the LTA. There was a common punishable act: thedefendant driving with alcohol in his system.16 On the other hand, in Smith,Judge Sainsbury held that s 46 did not apply to charges under ss 32 and 56 arisingfrom the same incident. The core punishable acts were different. In the s 56 charge,it was driving on a road with a breath alcohol level over 400 micrograms per litre ofbreath. For the s 32 charge, it was driving with alcohol in one's system while subjectto a zero alcohol licence.17[16] In the present case Judge O'Driscoll endorsed Judge Neave's approach,holding that "the common punishable act is the defendant driving on a road havingalcohol in his system and having drunk alcohol before driving".18 Mr Mitchell's breathalcohol level was "factually the same for each offence regardless of what is requiredto meet the offence".19 To "extend the act of driving to read 'whilst subject to azero-alcohol licence'" would "artificially import an element of the offence into the actof driving".20 The Judge acknowledged that there were clear countervailing policy14 DC substantive judgment, above n 3, at [27].15 New Zealand Police v Tindall [2018] NZDC 22252; and New Zealand Police v Smith[2018] NZDC 9057. In Smith, the charges listed were ss 56(1) and 57AA(4) of the LTA but theJudge's reasoning compares ss 32 and 56.16 Tindall, above n 15, at [28].17 Smith, above n 15, at [22]–[23].18 DC substantive judgment, above n 3, at [91]. See also at [107].19 At [85].20 At [92].factors supporting the Smith approach and that this was something the High Courtcould "consider if they were to review the approach".21High Court judgment[17] On appeal, Osborne J held the District Court had erred by finding the plea ofprevious conviction applied to the s 32 charge. He began his analysis by canvassingthe case law under ss 46 and 47 of the CPA, with a focus on the judgments of Katz J(in the High Court) and Randerson J (in the Court of Appeal) inRangitonga v Parker.22 We discuss this case later, but in essence it held that s 47applied "where there is a common punishable act [or omission] central to both theprevious and new charge".23 The Court of Appeal went on to say that this approach"focuses on the substance of the facts giving rise to the previous and new chargesrather than a fine-grained comparison of each element of the charges".24[18] Osborne J examined the application of Rangitonga in subsequentDistrict Court judgments, including Tindall and Smith. He also looked at furtherappellate consideration of the issue in Filitonga v R and O'Reilly v Chief Executive ofthe Department of Corrections.25 These authorities are explored later in this judgment,but we note that in Filitonga the Court of Appeal recorded that the analysis inRangitonga applies equally to s 46.26 The Judge went on to hold that:[82] Applying the statutory test, in accordance with the Court of Appeal'sexplanation and formulations of it, I am satisfied that the two offences withwhich Mr Mitchell was charged do not arise from the same facts as requiredfor a special plea.[19] In his view, analysis focusing on the commonalities in the actions required foreach offence—driving, on a road, with alcohol in one's system—ignored "the veryelements which make the conduct punishable".27 A key requirement for the s 56(1)21 At [109]. See also at [93].22 Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73 [Rangitonga HC]; andRangitonga v Parker [2016] NZCA 166, [2018] 2 NZLR 796 [Rangitonga CA]—discussed at[53]–[56] below.23 Rangitonga CA, above n 22, at [41].24 At [41].25 Filitonga v R [2017] NZCA 492, [2017] NZAR 1667; and O'Reilly v Chief Executive of theDepartment of Corrections [2018] NZCA 313, [2018] NZAR 1327 [O'Reilly CA].26 Filitonga, above n 25, at [16].27 HC judgment, above n 6, at [83].charge was that Mr Mitchell's breath alcohol level was excessive, whereas a keyelement of the s 32(1)(b) charge was that he was driving in breach of his zero alcohollicence.28 Moreover, the charges had "appreciably different" points of focus; oneconcerned prohibiting driving with excess blood alcohol and the other was concernedwith driving within the requirements of a licence.29Court of Appeal judgment[20] On appeal, the Court of Appeal analysed the protection against double jeopardyhistorically offered in the common law and in statute in New Zealand. It then lookedat the introduction of ss 46 and 47 of the CPA and the Court of Appeal's interpretationof the provisions in Rangitonga and Filitonga. The Court agreed with Mr Sinclair,counsel for the police, that if:30 different punishable acts merely engage a common fact, the offences donot arise from the "same facts" as prescribed in s 46(1). To say that offencesshare a common fact or facts is not the same thing as saying they involve"common punishable acts".[21] The Court then appeared to approve Osborne J's reasoning:31[26] This point was developed by Osborne J in his identification of thedifferent key elements in the two offences in question: the excessive alcohollevel in the s 56 charge, and for the s 32 charge the possession of a zero alcohollicence (without which the act of driving on the road with merely some levelof breath alcohol would not have been punishable). [22] A range of examples were then explored, using Venn diagrams. The Courtagreed with a submission made for the police:32 that where a person is both subject to a zero licence and exceeds thebreath/blood alcohol level in s 56, the presence of an overlapping fact —driving with alcohol — does not change the O'Reilly conclusion [that (thehypothetical example of) driving without a warrant of fitness while notregistered involves two punishable acts]. No particular level is required inone parcel of conduct whereas a person's licence status forms no part of theother parcel of conduct. Neither subsumes the other.28 At [84]–[85].29 At [88].30 CA judgment, above n 8, at [25].31 Footnote omitted.32 At [30].[23] The Court agreed that "the manner of proof of a common fact does not impactthe distinction between the core punishable acts".33 It also agreed that:34 the rationale adopted in Hughes [v R35—that the offences of driving whiledisqualified and driving with excess breath alcohol were different in kind] isalso applicable on the present appeal. Mr Mitchell imperilled the safety ofother road users by driving with excess breath alcohol and he defied aCourt-imposed licence condition. Dual convictions not only fairly capture,but also appropriately label, his offending.[24] The Court also noted the potential implications of s 57AA of the LTA. Thatprovision concerns the contravention of specified breath or blood alcohol limits by theholder of an alcohol interlock licence or a zero alcohol licence. The Court observed:[47] In our view the most that can be said is that several provisions nowco-exist in the legislation, and the choice of charges necessarily remains amatter of discretion for the prosecutor. However, for the reasons advanced by[Crown counsel] we recognise that it may not always be appropriate for excessbreath alcohol in combination with breach of zero licence to be charged simplyunder s 57AA.SubmissionsMr Mitchell's submissions[25] Mr Cook submitted for Mr Mitchell that the Court of Appeal's analysiswrongly devolved into a fine-grained comparison between the elements of the offences(such as comparing the alcohol level required for each offence). The s 46(1)(a) inquiryis elemental whereas the s 46(1)(b) inquiry is factual. The Court's approach left noroom for s 46(1)(b) to operate.[26] Mr Cook suggested the appropriate approach is that a defendant cannot beprosecuted for an offence where "those facts" (namely the defendant's acts and/oromissions) said to constitute that offence are the same facts (the defendant's actsand/or omissions) which constituted an offence for which the defendant waspreviously convicted or acquitted. It is inherent that any subsequent charge whicharises from "those facts" will have different elements from the original offence33 At [31].34 At [36].35 Hughes v R [2012] NZCA 388.(barring unusual circumstances). Under an elemental approach, only subsumed oridentical offences can qualify.[27] At the hearing, Mr Cook contended that s 46(1)(b) codified the common lawdoctrines of autrefois convict and abuse of process. While special pleas are"black and white", and abuse of process has historically been an evaluative doctrine,he submitted that there is still discretion in determining whether the same facts are atplay for each offence. Mr Cook acknowledged that this approach does not provide abright line and that a judgment on the facts of each case will be required.[28] Mr Cook submitted that, on the facts here, Mr Mitchell's acts in breach ofs 56(1) were to drive with 649 micrograms of alcohol per litre of breath. Those actswere the facts which also rendered him liable for the s 32(1)(b) offence. His status asa person subject to a special licence was a background fact. The Court of Appeal erredin isolating that fact, which was peculiar to the s 32 charge, and regarding its existenceas dispositive or highly instructive about whether the two offences arose from differentfacts.[29] It was also submitted that the Court of Appeal wrongly relied on several furtherconsiderations—such as fair labelling and sentencing options—extraneous to themandated analysis of the facts constituting each offence.[30] Ultimately, Mr Cook argued that dual conviction would constitute unnecessaryduplication and would waste resources and time. The provisions address the samesocial evil. That Mr Mitchell also had a zero alcohol licence can be taken into accountat sentencing.Police submissions[31] Mr Sinclair submitted that the Court of Appeal correctly assessed the role ofs 46 in a case of this nature. Sections 46 and 47 create a straightforward, mandatoryset of rules for the special pleas, and the more flexible abuse of process doctrine patrolstheir boundaries to avoid oppressive charging.[32] Section 46(1)(a) addresses the narrow, uncontroversial situation in which aspecial plea has always been available (and which is unlikely to arise inpractice)—when the same offence is charged on the same facts. Section 46(1)(b) dealswith the more common situation where a different offence is charged but it is, in effect,the same offence, or the offence is subsumed by the other offence. The elements ofan offence remain the touchstone and that is unavoidable. One cannot conduct thefactual comparison in s 46(1)(b) without considering the ingredients of the twooffences.[33] Here, Mr Sinclair submitted, the presence of distinguishing, additionalelements in ss 32(1)(b) and 56(1) necessarily means that different offences, whichcannot arise from the same facts, are in play. Mr Mitchell's conduct involves twodistinct punishable acts. There is an additional fact at work in the s 32 offence—Mr Mitchell being subject to a zero alcohol licence. An adult who drives with alcoholin their system does not commit an offence per se.36 But they do commit an offenceif they did so while subject to a zero alcohol licence. There is likewise a distinctexcessive breath alcohol threshold in s 56(1). A person who drives after drinking doesnot commit that offence for that reason alone. But they do commit an offence if theirbreath alcohol level is over 400 micrograms per litre of breath.[34] The LTA contemplates multiple convictions arising from the same episode ofdriving. Notwithstanding s 57AA's existence, there remain sound policy reasons forseeking separate convictions under ss 32 and 56. The two offences concern distinctwrongs and rest on different facts. Section 32 addresses a breach of discipline and notthe impairment as such. Section 56 is a drink-driving offence. It was submitted thatdual conviction was appropriate.Issue[35] The two charges faced by Mr Mitchell arose from the same evidential breathtest result. The issue is whether, having been convicted of the s 56(1) charge,s 46(1)(b) of the CPA precludes Mr Mitchell's conviction on the second (s 32(1)(b))charge.36 Leaving aside the zero alcohol restriction on drivers under 20 years old.[36] Before addressing that issue, we look first at how we got to s 46(1)(b).How we got to s 46(1)(b)[37] The rule against double jeopardy has existed from the "very beginnings of thecommon law" and was, as Mr Cook submitted, forged in harsher times.37 InGreen v United States, Black J said that:38 the State with all its resources and power should not be allowed to makerepeated attempts to convict an individual for an alleged offense, therebysubjecting him to embarrassment, expense and ordeal and compelling him tolive in a continuing state of anxiety and insecurity, as well as enhancing thepossibility that even though innocent he may be found guilty.As that passage makes clear, it is not only repeated trial and punishment that areproscribed, but repetitive prosecution for what is substantially the same offence.[38] The Law Commission (England and Wales) saw in the rule a "wider socialvalue achieved by delineating the proper ambit of the power of the state".39 Finalityof prosecution and consequent conviction (or acquittal) represent "an enduring andresounding acknowledgment by the state that it respects the principle of limitedgovernment and the liberty of the subject".40 Moreover:41In a liberal democracy, it is a fundamental and political and social objective toallow individuals as much personal autonomy as possible, to allow people thespace to live their own lives and pursue their own visions of the good life.Lack of finality in criminal proceedings impinges on this to a significantdegree, in that the individual, though acquitted of a crime, is not free thereafterto plan his or her life, enter into engagements with others and so on, if requiredconstantly to have in mind the danger of being once more subject to criminalprosecution for the same alleged crime.[39] Finality is an integral element of the robust and responsible administration ofcriminal justice and a keep-safe in achieving ultimate rehabilitation of a personcharged and duly processed by that system. Those properly prosecuted have aninterest, and under s 26(2) of the Bill of Rights Act and ss 46 and 47 of the CPA, a37 Jill Hunter "The Development of the Rule Against Double Jeopardy" (1984) 5 J Legal Hist 3 at3–4. See also Martin L Friedland Double Jeopardy (Clarendon Press, Oxford, 1969) at 3.38 Green v United States 355 US 184 (1957) at 187–188.39 Law Commission (England and Wales) Double Jeopardy and Prosecution Appeals (Law Com No267, 2001) at [4.17].40 At [4.17].41 At [4.12].right, not to be subjected to successive prosecution, conviction and punishment for thesame offence or a similar offence arising from the same facts.[40] Until the nineteenth century, a double jeopardy plea typically involved a"second prosecution for precisely the same offence".42 There were fewer offences inthose days and "therefore fewer opportunities for a particular fact situation to give riseto multiple offences".43 As the number of statutory offences proliferated,"broader principles" were required to adequately protect an accused whensubsequently charged with a different offence arising out of the same episode as thefirst charge.44 A range of different common law tests were implemented and trialled,including the unsatisfactory "same evidence" and "in peril" tests.45[41] New Zealand's first criminal code—the Criminal Code 1893—codified thespecial pleas, based on a code prepared by James Fitzjames Stephen.46 The relevantprovisions of the 1893 Code—ss 379 and 380—are close precursors to ss 358 and 359of the Crimes Act 1961.47 Now repealed, s 358 provided that:(1) On the trial of an issue on a plea of previous acquittal or convictionto any 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.42 Friedland, above n 37, at 14 (emphasis in original).43 At 14. See, for example, Turner (1664) Kely 30, 84 ER 1068 (KB) at 1068.44 Friedland, above n 37, at 14–15. See also Jay A Sigler Double Jeopardy: The Development of aLegal and Social Policy (Cornell University Press, Ithaca, New York, 1969) at 9–10.45 See R v Vandercomb (1796) 2 Leach 708, 168 ER 455 (on the "same evidence" test); andR v Barron [1914] 2 KB 570 (Crim App) at 574 (on the "in peril" test). Some of these tests (orvariations of them) existed before the proliferation of the number of statutory offences in England.46 Criminal Code Act 1893.47 The drafting changes made were stylistic or reflected the expansion of the plea to summaryoffences effected by ss 3(1)(h) and 8(2) of the Summary Proceedings Act 1957 (both nowrepealed). The explanatory note to the 1957 Crimes Bill described its effect as re-enacting theprior special plea provisions: Crimes Bill 1957 (135-1) (explanatory note) at xxviii.(2) If it appears that the accused might on the former trial have beenconvicted of any offence of which he might be convicted on the countto which that plea is pleaded, but that he may be convicted on thatcount of some offence of which he could not have been convicted onthe former trial, the Court shall direct that he shall not be convictedon that count of any offence of which he might have been convictedon the former trial, but that he shall plead over as to any other offencecharged.[42] Section 359 read:(1) Where an indictment charges substantially the same offence as thatwith which the accused was formerly charged, but adds a statementof intention or circumstances of aggravation tending if proved toincrease the punishment, the previous acquittal or conviction shall bea bar to the indictment.The balance of s 359 dealt with homicide offences and need not be considered furtherhere.[43] These provisions governed special pleas in New Zealand until 1 July 2013,when the operation of ss 46 and 47 of the CPA commenced. Also relevant is s 10 ofthe Crimes Act, which remains in force. It provides:(1) Where an act or omission constitutes an offence under this Act andunder any other Act, the offender may be prosecuted and punishedeither under this Act or under that other Act.(4) No one is liable to be punished twice in respect of the same offence.[44] The Crimes Act provisions were much-criticised. One commentator labelledthem the most incomprehensible in perhaps the whole of criminal law.4848 Ian Murray A Practical Guide to Criminal Procedure in New Zealand (2nd ed, LexisNexis,Wellington, 2016) at 53.Professor Richard Mahoney has described the authorities as bewildering.49 Two broadqualifying principles, however, emerge. One is about content; the other, timing.[45] The first Crimes Act qualifying principle required the subsequent charge to beidentical to (or at least subsumed by) the earlier charge. This approach "robbed thespecial pleas of any real effect".50 Section 358(1) also required the possibility ofconviction at the first trial on what became the subsequent charge, assuming dueamendment, if needed. This limb was effectively a "restatement of the common law'in peril of conviction' test".51 If a court was able to find a "subtle difference" betweenthe elements of the two offences at issue, the plea would not apply.52 It will suffice torefer to two cases.[46] Smith v Hickson involved a publican charged with three offences under s 190of the Licensing Act 1908.53 The charges were (a) selling liquor in licensed premiseswhen such premises were directed to be closed; (b) exposing liquor for sale in suchpremises during such a period; and (c) opening such premises for the sale of liquorduring such a period. The accused pleaded guilty to (a) and raised the plea ofautrefois convict to the other two charges, which the Magistrate sustained. TheSupreme Court (now the High Court) sat as a Full Court and was satisfied that theoffences were separate and distinct;54 they were not "the same offence, or substantiallythe same offence".55 Professor Mahoney suggests that Hickson left "the special pleas49 Richard Mahoney "Previous Acquittal and Previous Conviction in New Zealand: Another Kick atthe Cheshire Cat" (1990) 7 Otago L R 222 at 230. See also Richard Mahoney "From 'The SameOffence' to 'The Same Facts' — The Criminal Procedure Act Suddenly Strengthens the Pleas ofPrevious Conviction and Previous Acquittal" [2013] NZ L Rev 171.50 Mahoney "From 'The Same Offence' to 'The Same Facts'", above n 49, at 176–177.51 Mahoney "Previous Acquittal and Previous Conviction in New Zealand", above n 49, at 243.52 Mahoney "From 'The Same Offence' to 'The Same Facts'", above n 49, at 181–182.53 Smith v Hickson [1930] 1 NZLR 43 (SC).54 At 48 per Myers CJ, 50 per Herdman J and 57 per Ostler J. The case involved summaryproceedings, and, at the time, the common law governed summary proceedings. Hicksonnonetheless remains authoritative because the special plea provisions in the Crimes Act 1908 werevery similar to the common law position.55 At 50 per Herdman J.virtually interpreted out of existence".56 Only identical or subsumed offences couldattract the pleas' protection.[47] R v Brightwell, a Court of Appeal decision from 1995, involved an accusedconvicted of presenting a firearm without lawful and sufficient purpose.57 He wasthen charged with threatening to do grievous bodily harm. He pleadedautrefois convict. The District Court Judge rejected the plea. Delivering theCourt of Appeal's judgment, Henry J observed that ss "358 and 359 are said to bedeclaratory of or appear to state the common law".58 He continued:59In the present case two distinct and separate offences were committedalthough they both comprised the one series of actions. The Arms Act 1983is concerned with the promotion of the safe use and the control of firearms.Section 52(1), which carries a maximum penalty of three months'imprisonment and a fine of $1000, makes it an offence to present a firearm atanother person without lawful and sufficient purpose. It is not an element ofit that the offender in the course of doing such an act either commits an assaultor has any specific intention. Section 202C(a) of the Crimes Act 1961 bycontrast requires there to be an actual assault, but with the aggravating featureof the use of a weapon. The two offences are separate and distinct and canproperly stand together.[48] The second qualifying principle was that double jeopardy in its Crimes Actincarnation was concerned with subsequent, not simultaneous, convictions.60 AsProfessor Mahoney suggests, s 358 might more sensibly have been construed asconcerned only with subsequent charges (charges "laid after the termination of theprosecution of the original charge"), rather than convictions.61 That is becauses 358(1) referred to "the matter on which the accused was formerly charged"; s 359(1)to "substantially the same offence as formerly charged"; and s 359(3) to "theoffence previously charged".[49] But the case law did not follow that course, which meant that, under theCrimes Act provisions, simultaneous charges might then give rise to separate andsubsequent convictions, the earlier of which might be a bar to those coming later. If56 Mahoney "Previous Acquittal and Previous Conviction in New Zealand", above n 49, at 239.57 R v Brightwell [1995] 2 NZLR 435 (CA).58 At 437.59 At 438–439.60 See R v Lee [1973] 1 NZLR 13 (CA); R v Moore [1974] 1 NZLR 417 (CA); and R v Kerr (No 2)(1988) 4 CRNZ 91 (HC).61 Mahoney "From 'The Same Offence' to 'The Same Facts'", above n 49, at 191.convictions or acquittals were entered on some but not all the (simultaneously laid)charges faced, the plea might be advanced against the remainder to precludesubsequent conviction.62 That might arise via a variety of procedural events. First, asplit plea being made to multiple charges (guilty to some; not guilty to others), withconvictions entered on the former (rather than being reserved until all charges areresolved). Secondly, the trial being split, with convictions or acquittals entered onsome charges at the first trial. Thirdly, convictions being entered post-trial, but re-trialthen being ordered on some of the charges, but not all, either because of jurydisagreement or a successful conviction appeal.[50] We note briefly one final, general point. Long before the enactment of theCPA, there was an abundance of authorities establishing that the courts' inherentjurisdiction to correct abuse of process existed separately from the codified specialpleas.63 The Crimes Act pleas did not displace that inherent jurisdiction, and nor—weconclude—did the CPA.Legislative redevelopment of the special pleas[51] Legislative redevelopment of the special pleas came in two stages. One wasrestrictive; the other clarifying in nature. We can pass over the first (restrictive)changes—made to the Crimes Act in 2008.64 These deal with tainted acquittals inserious cases, becoming ss 378A and 378D of the Crimes Act, and subsequently ss 151and 154 of the CPA.[52] The second (clarifying) set of changes came in 2011 and involve the CPAprovisions at the heart of this appeal. The background to these was sketched in somedetail by Katz J in Rangitonga v Parker.65 Initially, the Criminal Procedure(Reform and Modernisation) Bill 2010 provided that the later charge must arise from62 See, for example, Hickson, above n 53.63 In Rangitonga HC, above n 22, at [41], Katz J observed that the "case law is replete with examplesof subsequent prosecutions that have been stayed where the Court has taken the view that theprinciples underpinning the rule against double jeopardy have been infringed, despite a plea ofprevious conviction or acquittal not being available". See, for example, Moore, above n 60;R v Clarke [1982] 1 NZLR 654 (CA); Ferris v Police [1985] 1 NZLR 314 (HC); R v McLeayCA349/96, 14 April 1997; Turipa v R [2004] 2 NZLR 706 (HC); R v Morgan [2005] 1 NZLR 791(CA); and R v Taylor [2008] NZCA 558, [2009] 1 NZLR 654.64 Crimes Amendment Act (No 2) 2008.65 Rangitonga HC, above n 22; affirmed in Rangitonga CA, above n 22."the same factual circumstances" as the earlier one.66 However, in Select Committeethe test was changed from "the same factual circumstances" to "the same facts". Thecircumstances in which this occurred are explained in Katz J's judgment in Rangitongaand need not be repeated here.67 The change was said by the Committee to be "for thesake of precision and clarity".68 We agree with the conclusion reached in Adams onCriminal Law that the change suggests a narrower approach than the original drafts.69Does s 46(1) preclude Mr Mitchell's conviction on the second charge?[53] We turn now to the issue identified at [35] above. The leading authority to dateis Rangitonga.70 In the present appeal, it was followed by both Osborne J and theCourt of Appeal. Mr Cook did not suggest it was wrong; merely that it should be givenliberal application, focusing on the facts rather than the elements of the offences.Mr Rangitonga had been arrested and charged with sexual violation by rape, andwounding with intent to cause grievous bodily harm. The wounding charge waswithdrawn, and the defendant was then acquitted of the rape charge. Subsequently aprivate prosecutor was granted leave to bring a new charge of injuring with intentarising from the same incident and complainant. The defendant pleadedautrefois acquit, under s 47. That plea was rejected in the District Court, High Courtand Court of Appeal.[54] Katz J in the High Court was not persuaded that Parliament had intended anyradical extension in the scope of the special pleas, although some change from theCrimes Act had been intended.71 The analysis the Judge undertook was that s 47required identification of the "core facts" of the original offence and the subsequentcharge.72 The Judge then noted that:73Difficult issues will no doubt arise as to what degree of common facts isnecessary in order to found a special plea. It seems unlikely that it would be66 Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1), cl 43.67 Rangitonga HC above n 22, at [54]–[61].68 Criminal Procedure (Reform and Modernisation) Bill 2010 (243-2) (select committee report) at 7.69 Bruce Robertson (ed) Adams on Criminal Law – Criminal Procedure (looseleaf ed, ThomsonReuters) at [CPA45.02].70 Rangitonga HC, above n 22 and Rangitonga CA, above n 22.71 Rangitonga HC, above n 22, at [65] and [78].72 At [79]–[80].73 At [80].necessary to establish that all of the core facts are the same, as this wouldessentially mean that only an identical offence would be barred.It was the Judge's view that "where a common punishable act is central to bothoffences, they will usually both arise out of the same facts".74[55] The Court of Appeal approved generally the approach taken by Katz J.Section 47 was intended to apply to cases "where there is a common punishable act[or omission] central to both the previous and new charge".75 The Court continued:"The new section focuses on the substance of the facts giving rise to the previous andnew charges rather than a fine-grained comparison on each element of the charges."76Applying that approach, the central punishable act for the original rape charge wassexual connection without consent; that for the new injuring charge was punching andattempting to strangle the complainant.77 The difference meant the plea ofautrefois acquit was not available.[56] The Court of Appeal reasoned that an expansive approach to s 47 would not sitwell with the 2008 amendments noted above, establishing very limited circumstancesin which previously-acquitted persons might be re-tried. Clarity and certainty werethe objectives. The approach taken of looking for the central punishable act of eachcharge should be relatively straightforward, identifying those acts (or omissions) "byreference to the essential elements of the offences".78 That would avoid "an undulytechnical approach to the availability of the special plea".79[57] We may touch on two other decisions rather more briefly. In Filitonga v R, thespecial plea ultimately succeeded.80 The appellant had been convicted of (1) causinggrievous bodily harm to the complainant with reckless disregard for his safety, arisingfrom having unprotected sex with the complainant while knowingly having HIV (andwithout disclosing that fact) and (2) criminal nuisance by having unprotected sex withthe complainant knowing that this would endanger the complainant's life, safety or74 At [82].75 Rangitonga CA, above n 22, at [41].76 At [41].77 At [42].78 At [43(b)].79 At [43(c)].80 Filitonga, above n 25.health. These charges were not laid in the alternative. The Court of Appeal appliedthe formulation in Rangitonga: if the jury had concluded that both charges arose fromthe same act of unprotected sex, a conviction on one of the offences would precludeconviction on the other, given the common punishable act for each charge—which theCourt described as "having unprotected sex, while knowingly HIV-positive, beingreckless as to the consequences".81[58] In O'Reilly v Chief Executive of the Department of Corrections, Mr O'Reillywas subject to an extended supervision order following conviction in 2005 of anindecent assault on a 12-year-old boy.82 The order included two relevant conditions:to not engage in new employment, and to not move address, without the prior writtenapproval of his probation officer. Breach of either condition constituted a criminaloffence under the Parole Act 2002. Mr O'Reilly was also a registered offender underthe Child Protection (Child Sex Offender Government Agency Registration) Act 2016.That required him to report any change in employment and residential address to theCommissioner of Police, the breach of which was also a criminal offence under thatAct. Mr O'Reilly moved residence and took up new employment, without theapproval of his probation officer, and without reporting the changes to the police.Mr O'Reilly faced charges under both Acts for breaching the conditions of the orderand the reporting requirements. He pleaded guilty to the charges under theChild Protection Act of failing to comply with his reporting obligations. He sought toenter a plea of autrefois convict under s 46 of the CPA on the remaining charges underthe Parole Act. This plea failed in all three courts. In the High Court, Woolford J said,when discussing Mr O'Reilly's employment:83[28] The central punishable act for the charge under the Parole Act wascommencing employment without prior written approval, while the centralpunishable act for the charge under the Child Protection Act was failing toreport to the Police within 72 hours after commencing employment. Therewas, therefore, a space of three days between the dates on which the offenceswere committed.81 At [17].82 O'Reilly CA, above n 25.83 O'Reilly v Department of Corrections [2018] NZHC 469.[59] That analysis was affirmed in the Court of Appeal, which noted that each setof charges required proof of different omissions:84The charges alleging breaches of the ESO require proof beyond reasonabledoubt of omissions to gain prior approval. The charges alleging breach of theChild Protection Act required the police to prove beyond reasonable doubtomissions to report, after the events, the change of employment and theabsences from the address. The change of employment and being absent fromhis address were not common punishable acts. The omissions were thepunishable acts, and they were different.Our assessment[60] Our task is to construe s 46 of the CPA in light of its purpose andcontext— which necessarily includes s 26(2) of the Bill of Rights Act.85 We draw anumber of inferences from the contextual account of motivating policy and legislativereform outlined above.[61] We consider the motivating policy underlying ss 46 and 47 remains thatindicated at [37]–[39] above. As Black J observed in Green v United States, the ruleagainst double jeopardy is a rule directed at repeated attempts made to prosecute,convict and punish for particular (or closely related) offending.86 That policy liesbehind the Bill of Rights Act's s 26(2) broad proscription against retrial (andpunishment) for the same offence, which "merely requires that there be a substantialsimilarity between the original and the current offence".87 A focus on the identity ofcharges (or whether one is subsumed by another) does not meet that policy fully. Weobserve, also, that there is no suggestion in the legislative record that the CPA wasintended to annex or displace the inherent jurisdiction to correct abuses of process,described at [50] above, particularly where there is duplicity (overcharging in relationto a single actus reus) and multiplicity (overcharging more generally).84 O'Reilly CA, above n 25, at [15].85 See above at [13].86 Green, above n 38, at 187–188.87 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015), at [24.3.18]. In G v The District Court at Auckland, theCourt of Appeal observed that s 26(2) was essentially declaratory of the existing law, and shouldbe seen "as requiring only that the original and the current offences be 'substantially the same'":G v The District Court at Auckland CA199/03, 1 December 2004 at [50]–[51].[62] The major change effected by the CPA is to liberate the restriction representedby the first Crimes Act principle (subsequent charge identical or subsumed: see [45]above).88 That arises from two drafting choices: first and fundamentally, the inclusionof "any other offence" in s 46(1)(b); and secondly, the more liberal "arising from thesame facts" requirement in s 46(1)(a). The very narrow approach taken under theCrimes Act provisions in Hickson and its satellite authorities has been reformed by theCPA.[63] There is some opacity in the drafting of s 46(1): "arising from the same facts"is not an easy test. It is not, for instance, as easy to apply as one based on legalelements. But Parliament was deliberately departing from the elemental test that heldsway under the Crimes Act. The underlying principle developed in Rangitonga of acommon punishable act offers a workable entry threshold based on substantial factual,rather than legal, identity between the two charges being assessed. Rangitonga wasdelivered in 2016; the CPA has been amended on a number of occasions since thenwithout Parliament seeing fit to further revise ss 46 and 47.[64] What s 46(1)(b) of the CPA requires is an examination as to whether the factsthat make the second charge punishable are substantially the same as for the first. Ofcourse the elements of the charges may in one sense be expressed as "facts"constituting the common punishable act. But that is not the focus under the CPA. Thefocus is whether the physical acts committed (or omitted) by the defendant, whichrender them liable to punishment under each charge, are substantially the same.89 Atits simplest, dates may differ and there may be wholly separate acts in time. But actsobviously can occur simultaneously and give rise to unobjectionably different charges,88 Mahoney "From 'The Same Offence' to 'The Same Facts'", above n 49, at 192.89 It is unnecessary to decide the point in this appeal, but we consider the approach taken inRangitonga, focusing on the physical acts (rather than mental elements) comprising the twocharges, is correct. To require commonality also of facts which are mental elements would be tounder-protect defendants from double punishment. Mental elements may still serve somerelevance, as Filitonga demonstrates: see [57] above. In that case both knowledge andrecklessness were common to the two charges, and their commonality served to reinforce theconclusion that the two charges involved a common punishable act—having sex with the victimwhile being HIV-positive. In other cases, such as murder vs manslaughter, or injuring with intentto injure vs intent to cause grievous bodily harm, the mental elements differ only in degree and aconviction may be entered on one charge only where the physical acts are the same. See, as tothat, Lee, above n 60, at 17.as the obiter example given in O'Reilly—of an act of driving infringing both warrantand registration requirements—shows.90[65] Two things follow. First, that care must be taken (as Filitonga shows) inensuring truly overlapping charges are laid in the alternative (or put to the trier of factin that way). Secondly, where the facts underlying each charge differ substantially,the CPA special pleas will be displaced and any remaining relief must come either viathe courts' inherent jurisdiction (abuse of process) or in the sentencing process.[66] Turning now to the present case, we are satisfied that there is sufficientdifference between the common punishable acts of the two charges so that the specialpleas are here clearly displaced, despite the fact the acts occurred simultaneously.[67] As demonstrated above at [10]–[11], the common facts here were that(1) Mr Mitchell was driving a motor vehicle on a road, and (2) he did so with breathcontaining alcohol.[68] The difference lies in the remaining facts making him liable to punishment oneither (but not both) the ss 56(1) and 32(1)(b) LTA charges: (3) that his breath alcohollevel specifically exceeded 400 micrograms per litre of breath (not a material fact forthe s 32(1)(b) licence charge); and (4) his holding a zero alcohol licence at the time hedrove with breath containing alcohol (not a material fact for the s 56(1) breath alcoholcharge).[69] These factual differences are fundamental. They lie at the core of the twocharges, making them substantially different in character from each other. AsMr Sinclair submitted, one addresses a breach of discipline (the violation of licenceconditions), whereas the other is a drink-driving offence (being concerned withimpaired driving).91 The charges do not arise from the same facts. There is nothingunlawful in Mr Mitchell being convicted of both, and then being sentenced in a way90 O'Reilly CA, above n 25, at [18]. Likewise, for instance, deliberate detonation of an explosivedevice that kills two people simultaneously gives rise to two convictions for murder, the factualdifference lying in the identity of the victim in each charge.91 See above at [34].that meets the requirement in s 85 of the Sentencing Act 2002 that the totality of thecombined offending be considered.Result[70] The appeal is dismissed.ELLEN FRANCE J[71] I, too, would dismiss the appeal. I agree that the factual differences betweenthe two charges here are material so that the special plea is displaced. I writeseparately to explain where my reasoning differs from that in the reasons delivered byKós J.[72] For ease of reference, I repeat the text of s 46 of the Criminal ProcedureAct 2011. The section reads as follows: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 is satisfiedthat 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.[73] I also repeat the terms of s 26(2) of the New Zealand Bill of Rights Act 1990,namely, that "[n]o one who has been finally acquitted or convicted of, or pardoned for,an offence shall be tried or punished for it again".[74] The first point I would emphasise is that under s 46 it is clear that the specialplea may be made where the defendant "has been convicted". As the respondentsubmits, the use of the words "the offence currently charged" in s 46(1)(a) alsoenvisages the need for a temporal gap between the "previous conviction" and a latercharge. Accordingly, in the present case, it is doubtful whether there would have beenany issue in terms of s 46 if, instead of what transpired, the District Court Judge hadtaken the proffered pleas and entered convictions simultaneously. Where the chargesare dealt with simultaneously, that meets the concern underlying s 46 that there shouldbe no repeated trial or punishment because all matters of culpability can be addressedtogether at sentencing.[75] Further, the potential for prejudice can be addressed by abuse of process whichis a sufficiently flexible mechanism for delineating between a case such as the presentone and more problematic cases. I add that s 10(3) of the Crimes Act 1961 will alsobe relevant where the act or omission is an offence under two or more provisions ofthat Act or of any other Act. In that situation, s 10(3) provides that "the offender maybe prosecuted and punished under any one of those provisions".[76] Second, the consideration required under s 46(1)(b), that is, whether the factsin issue are the "same", does require some assessment of their materiality. In terms ofthat assessment, in agreement with the reasons delivered by Kós J, I accept s 46 signalsa move away from the previous focus under the Crimes Act provisions on what theCourt of Appeal in Rangitonga v Parker described as a comparison of "all the legalelements of the previous and new charges".92 But, as the Court of Appeal also said inRangitonga, in respect of the new special pleas there is nothing to suggest an intentionto bring about a "radical" change in substance.93 Against that background, I agreewith the submission for the respondent that it is questionable whether the words ofs 46 necessarily confer a controlling role upon the facts, operating independently fromthe elements. Rather, in most cases the elements of the offence will at least provide a92 Rangitonga v Parker [2016] NZCA 166, [2018] 2 NZLR 796 at [29].93 At [43(a)] and [46].helpful starting point, or as the respondent put it, a gauge, in defining the necessaryfacts for the purposes of s 46.94[77] The use of the concept of the "common punishable act" appears then to add anunnecessary gloss on the statutory language. That said, I accept that the concept hasprovided a practical means of approaching the provision which appears to be workingwell, and there is no need for me to develop the point in the present case.[78] Finally, I have some reservations about an approach that would largely ignorefacts which are mental elements and focus instead on whether the physical actscommitted or omitted rendering the person liable to punishment under each charge aresubstantially the same. By way of example, in the context of manslaughter, it ispossible for a defendant to be in breach of two different duties applying to the sameperson resulting in the same death. It is not clear to me whether a focus on the physicalacts would lead to an appropriate outcome in policy terms in situations like that.However, I accept that it would be preferable to resolve this question in a situationwhere the question is truly in issue.Solicitors:Crown Law Office, Wellington for Respondent94 I say most cases because, on the authorities, this would not always be the case. See, for example,R v Clarke [1982] 1 NZLR 654 (CA) (manslaughter—killing by an unlawful act, namely, recklessdriving and causing death of passenger—driving with excess blood alcohol); R v Brightwell[1995] 2 NZLR 435 (CA) (presenting firearm without lawful and sufficient purpose—Arms Act1983—and threatening to do grievous bodily harm); and R v Lee [1973] 1 NZLR 13 (CA)(possession of LSD and possession of LSD for sale).