MANINDER SINGH v NEW ZEALAND POLICE [2021] NZSC 78

MANINDER SINGH v NEW ZEALAND POLICE [2021] NZSC 78 [2 July 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 42/2021[2021] NZSC 78BETWEEN MANINDER SINGHApplicantAND NEW ZEALAND POLICERespondentCourt: O'Regan, Ellen France and Williams JJCounsel: A J Haskett and A A Rasheed for ApplicantC A Brook and S E Trounson for RespondentJudgment: 2 July 2021JUDGMENT OF THE COURTA The application to adduce evidence in support of theapplication is dismissed.B The application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant was convicted on a charge of driving a vehicle with theproportion of alcohol in his breath exceeding 400 mcg of alcohol per litre of breath.1[2] He appealed to the High Court but his appeal was dismissed.2[3] The applicant applied to the Court of Appeal for leave to bring a second appeal.In his application for leave, he sought leave to challenge the rejection by the1 New Zealand Police v Singh [2019] NZDC 10147 (Judge D J Harvey). The proportion of alcoholin the applicant's breath was 986 mcg of alcohol per litre of breath.2 Singh v New Zealand Police [2020] NZHC 368 (Katz J).High Court of the arguments he had made in the District Court. But, in addition tothis, he also sought leave to raise a new ground, namely that the police had failed tocomply with s 77(3A)(a) of the Land Transport Act 1998. This raised the "Block J"issue, which has been the subject of a recent judgment of this Court inMcKinney v New Zealand Police.3 In McKinney, this Court refused leave to bring anappeal that would, in substance, have amounted to a challenge to the decision of theCourt of Appeal resolving the Block J issue in favour of the police:Re Solicitor-General's Reference (No 1 of 2020).4[4] At the time the applicant's application for leave to appeal was before the Courtof Appeal, the Block J issue remained unresolved, as the Court had not yet heardRe Solicitor-General's Reference (No 1 of 2020). Because of the possibility that adecision against the police in Re Solicitor-General's Reference (No 1 of 2020) wouldgive rise to a miscarriage of justice in the applicant's case, the Court granted Mr Singhleave to appeal in regard to the point at issue in Re Solicitor-General's Reference(No 1 of 2020).5 In all other respects it dismissed his application for leave to appeal.[5] Despite the fact that Re Solicitor-General's Reference (No 1 of 2020) wasresolved in favour of the police, the applicant pursued an appeal to the Court of Appealpursuant to the leave that had been given.[6] The Court of Appeal dismissed the appeal.6 The Court rejected the applicant'sarguments to the effect that Re Solicitor-General's Reference (No 1 of 2020) wasdecided per incuriam.7 The applicant seeks leave to appeal to this Court against thisaspect of the Court of Appeal decision, essentially as a means of challengingRe Solicitor-General's Reference (No 1 of 2020). In this respect, his applicationmirrors Mr McKinney's application. We decline leave to appeal on this ground for thesame reasons as we gave on the same issue in McKinney.83 McKinney v New Zealand Police [2021] NZSC 68.4 Re Solicitor-General's Reference (No 1 of 2020) [2020] NZCA 563.5 Singh v R [2020] NZCA 411 at [22].6 Singh v New Zealand Police [2021] NZCA 91 (Kós P, French and Gilbert JJ).7 At [20]–[22].8 McKinney, above n 3, at [10]–[11].[7] The applicant also sought to raise a new point of appeal in the Court of Appeal,namely that the POL515 procedure sheet (on which Block J appears) was not producedin evidence at his trial. The Court of Appeal responded to that point as follows:[8] Leave was granted in September 2020 against the possibility thatRe Solicitor-General's Reference might find the Block J wordingnon-compliant. It follows the appellant's first argument [that the proceduresheet was not in evidence]: (1) was not raised in the District Court; (2) wasnot raised in the High Court; (3) was not raised in the application for leave;(4) was not the subject of leave granted; and (5) was not the subject of anyproper application for extended leave (for which a Crown application toadduce further evidence from the police might have been entertained). In anyevent, the argument is difficult to make with any cogency in the face of theconstable's evidence at trial. As we made clear at the hearing, we will notentertain it.[8] In effect, the applicant is asking us to determine as a first and last court a pointas to the conduct of the trial which has not been considered by any of the Courts belowand which was not within the scope of the leave granted by the Court of Appeal. Inthose circumstances, we do not consider it appropriate for this Court to give leave toappeal on this point. It is clear that if the applicant had sought the leave of the Courtof Appeal to bring an appeal on this basis, the Court would have declined it. In thosecircumstances, no right of appeal against the refusal of leave would have beenavailable. In any event, as the Court of Appeal noted, the argument was hard to makein the face of the police officer's evidence at the trial.9 In those circumstances, thereis no risk of a miscarriage of justice and, given the fact-specific nature of the point theapplicant wishes to raise, no matter of general or public importance arises either. Sothe criteria for the grant of leave are not met.10[9] The applicant sought leave to adduce evidence in support of the application.This was a copy of an affidavit that the respondent sought to adduce at the hearing ofRe Solicitor-General's Reference (No 1 of 2020) in the Court of Appeal. That Courtdeclined to receive it because it was not relevant to the questions it was addressing.11We declined leave to Mr McKinney to adduce it in support of his application for leave9 The evidence given at the trial was that the police had used the POL515 procedure sheet whenconducting Mr Singh's evidential breath test and no challenge had been made to the proceduralaspect of the testing regime.10 Senior Courts Act 2016, s 74(2)(a) and (b).11 Re Solicitor-General's Reference, above n 4, at [28].for the same reason.12 We also decline leave to the applicant to adduce it in the presentcase for the same reason.[10] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent12 McKinney, above n 3, at [12].