LANCE PHILLIP NEWING v NEW ZEALAND POLICE [2019] NZSC 90

LANCE PHILLIP NEWING v NEW ZEALAND POLICE [2019] NZSC 90 [22 August 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 51/2019[2019] NZSC 90BETWEEN LANCE PHILLIP NEWINGApplicantAND NEW ZEALAND POLICERespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: C Mitchell for ApplicantK L Kensington for RespondentJudgment: 22 August 2019JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] Mr Newing pleaded guilty to driving with excess breath alcohol. Heunsuccessfully sought a discharge without conviction and was convicted, fined anddisqualified from driving by the Community Magistrate.1 The discharge was soughton the basis of the effect a conviction would have on his employment.[2] Mr Newing appealed unsuccessfully against the decision declining a dischargewithout conviction to the District Court.2 Mr Newing's subsequent application for1 New Zealand Police v Newing [2017] NZDC 16950 (Community Magistrate Cole).2 Newing v New Zealand Police [2018] NZDC 5927 (Judge Blackie).leave to appeal to the High Court was dismissed by that Court.3 He now seeks leaveto appeal to this Court direct from the decision of the District Court.The proposed appeal[3] Mr Newing seeks leave to appeal directly from the decision of the DistrictCourt because the High Court's decision to decline leave is final.4 As the respondentsubmits, there is a question whether this Court has jurisdiction to hear a direct appealin this case. That question arises because the appeal to this Court would be a secondappeal and the relevant provisions state that the only second appeal court is the HighCourt.5 However, we do not need to decide this point because there are no exceptionalcircumstances that would justify a direct appeal.6[4] The proposed appeal would not challenge the principles applied by the Courtsbelow. Rather, the appeal would be fact specific. No questions of general or publicimportance arise.7 Nor does anything raised by Mr Newing give rise to the appearanceof a miscarriage of justice.8 The offending was treated as moderately serious reflectingthe excess breath alcohol level (707 micrograms of alcohol per litre of breath)9 and thefact Mr Newing was stopped because he was speeding and failed to stop at a red trafficlight. The evidence as to the consequences of a conviction on which Mr Newing seeksto rely, which was not before the District Court, was considered by the High Court indeclining leave.103 Newing v New Zealand Police [2019] NZHC 772 (Gault J) [HC judgment].4 Criminal Procedure Act 2011, s 213(3).5 Criminal Procedure Act 2011, ss 238(a) and 254(a). The position may be contrasted in this respectfrom that before the Court in Basnyat v New Zealand Police [2019] NZSC 21 where the Courtacknowledged the possibility of a direct appeal from the decision of the High Court to decline anapplication for a discharge for excess breath alcohol.6 Senior Courts Act 2016, s 75(b).7 Senior Courts Act 2016, s 74(2)(a).8 Senior Courts Act 2016, s 74(2)(b).9 The limit is 250 micrograms of alcohol per litre of breath: Land Transport Act 1998, s 11(a).10 Gault J did not consider the evidence was sufficiently cogent and, in any event, was not satisfiedthat "the consequences of conviction would be out of all proportion to the gravity" of theoffending: HC judgment, above n 3, at [29].[5] The application for leave to appeal is accordingly dismissed.Solicitors:Crown Law Office, Wellington for Respondent