NEW ZEALAND POLICE v MCKINNEY [2021] NZHC 330

NEW ZEALAND POLICE v MCKINNEY [2021] NZHC 330 [2 March 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-465[2021] NZHC 330BETWEEN NEW ZEALAND POLICEAppellantAND MARK ANTHONY MCKINNEYRespondentHearing: 2 February 2021Appearances: K Lummis and B Archibald for the NZ PoliceA J Haskett and Z Reid for the RespondentJudgment: 2 March 2021JUDGMENT OF POWELL JThis judgment was delivered by me on 2 March 2021 at 4 pmRegistrar/Deputy RegistrarDate:[1] The appellant, the New Zealand Police, seeks leave to appeal against a decisionof Judge CJ Field in the District Court, dismissing a charge of driving with excessbreath alcohol against Mr McKinney.1[2] The sole issue raised in the District Court was the wording of Block J in thePolice Procedure Sheet POL515 09/19 (the blood and breath alcohol proceduresheet).2 In common with a number of other decisions in the District Court at that time,3Judge Field concluded that the wording in Block J failed to comply with s 77(3)(a)and (3A) of the Land Transport Act 1998.4[3] This present application is brought under s 296 of the Criminal Procedure Act2011, which permits a prosecutor or defendant, with leave of the appeal court, toappeal on a question of law against a ruling by the trial court, in this case a misdirectionof law apparent in the decision.5 Specifically, the Police seek leave on two questionsof law:(a) Was the Judge correct to find there had been non-compliance with ss77(3)(a) and (3A) of the Land Transport Act 1998 by reason of thewording of Block J on the Police Procedure Sheet POL515 09/19?(b) If the answer to the question to the above is yes, was the Judge correctto find as a result that there had not been reasonable compliance withss 77(3)(a) and (3A), in terms of s 64(2) of the Act, such that evidenceof the evidential breath test result was inadmissible?[4] As it happens, those very questions have recently been addressed in theSolicitor-General's Reference (No 1 of 2020)("the Solicitor-General's Reference").6In that case, heard shortly after Judge Field issued his decision dismissing the chargeagainst Mr McKinney, the Court of Appeal held that Block J communicates the "sense1 Police v McKinney [2020] NZDC 20169.2 At [2].3 At [6].4 At [8].5 R v Malu [2017] NZCA 546 at [10].6 Solicitor-General's Reference (No 1 of 2020) [2020] NZCA 563.and effect" of the warning required to be given to motorists by s 77(3A)(a).7 Inreaching this decision the Court concluded that verbatim recitation of the statutorysection is not necessary,8 and the use of the word "prosecution" instead of "conviction"was immaterial as the wording of Block J still conveys to a motorist that they may befound guilty of an offence as a consequence of their evidential breath test result.9 Asa result of these conclusions, the Court of Appeal answered "no" to the first questionand given that answer, concluded that no answer was necessary to the secondquestion.10[5] Given the outcome of the Solicitor-General's Reference, the position of thePolice is that not only have the requirements for leave been met in that an error in lawin Judge Field's decision has been identified, but that the substantive appeal shouldalso be allowed given the Solicitor-General's Reference is, as Ms Lummis on behalfof the Police submitted, clearly binding on this Court.The position of Mr McKinney[6] Despite the apparently clear nature of the Solicitor-General's Reference,Mr Haskett on behalf of Mr McKinney disputes that it is determinative, and indeedopposed the appeal proceeding. Mr Haskett initially suggested that the Solicitor-General's Reference could be distinguished from the present case but it was clear fromhis extensive submissions filed in opposition to the appeal that no basis was identifiedfor distinguishing the decision. Instead Mr Haskett's primary submission was that theSolicitor-General's Reference was wrongly decided, identifying no less than12 alleged errors of law, and also suggested that the Court of Appeal decision left openthe approach to be followed by this Court.[7] As a result, Mr Haskett initially sought to have this appeal remitted directly tothe Court of Appeal. Although this application was declined by Downs J prior to thepresent hearing, Mr Haskett sought to revisit this decision, or to otherwise have thisappeal adjourned pending the outcome of another appeal, currently before the Court7 At [40]-[41].8 At [37].9 At [41].10 At [52].of Appeal, which raises similar issues. In the alternative Mr Haskett suggested I couldsimply find that the Court of Appeal's decision was "per incuriam", that is it waswrongly decided, suggesting that broadly if I accepted the merits of the issues raised Iwas not required to follow it. In making this submission, Mr Haskett was not able topoint to any authority to support his proposition I could simply decline to follow theSolicitor-General's Reference if I concluded it was wrongly decided.Discussion[8] The application for removal and the application for adjournment were bothdeclined at the hearing, and the matters raised by Mr Haskett provide no basiswhatsoever for not applying the Solicitor-General's Reference.[9] The point of the Solicitor-General's Reference was to bring clarity to whetheror not the wording of Block J provided a barrier to prosecutions like that faced byMr McKinney. Given the clear conclusion so recently reached by the Court of Appeal,no useful purpose is served to either remit the present appeal back to the Court ofAppeal for further discussion on the issue or to otherwise adjourn.[10] Likewise, Mr Haskett's undeveloped submission that I can simply decline tofollow the Court of Appeal if I consider that it is wrong is fundamentallymisconceived, and flies fully in the face of the doctrine of precedent. Quite simply,this Court is bound by the Court of Appeal's judgment in Solicitor-General's Reference(No 1 of 2020).[11] The reference to the Latin maxim of per incuriam does not assistMr McKinney. While there is little recent authority on what it means, the followingcomponents are suggested by Richard Scragg in The Principles of Legal Method inNew Zealand:11A decision reached per incuriam is one reached "in ignorance of a relevantstatute or precedent".12 In other words, it is a decision involving an oversightas to the relevant principles of law.11 Richard Scragg The Principles of Legal Method in New Zealand (3rd ed, Thomson Reuters,Wellington, 2016) at 76.12 David M Walker The Oxford Companion to Law (Clarendon Press, Oxford, 1980) at 946.There are certain requirements which must be satisfied before a decision canbe classified as per incuriam:(1) As already stated, the court in the earlier case must have overlookeda relevant statute or case in coming to its decision.(2) In addition, the later court must be satisfied that the earlier decisionwould have been different if the earlier court had been made aware ofthe overlooked statute or precedent.(3) A decision can only be held to be per incuriam by the same court inthe hierarchy or one above it. This third requirement is essential.Without it the whole doctrine of stare decisis could be undermined.If a lower court could hold the decision of a higher court per incuriam,the lower court would not be bound by it.13(citations included)[12] With regard to the first and second requirements, it is by no means clear thatany such relevant statute or case has been overlooked, still less that the decision in theSolicitor-General's Reference would have been different had the matters contended byMr Haskett been put to the Court of Appeal. It is however the third point that is thefundamental obstacle in this case. It is not open to me to simply hold that the Courtof Appeal was wrong and decline to follow the Solicitor-General's Reference. As LordDiplock noted in Baker v The Queen, cited above:Strictly speaking the per incuriam rule as such, while it justifies a court whichis bound by precedent in refusing to follow one of its own previous decisions(Young v. Bristol Aeroplane Co. [1944] K.B. 718), does not apply to decisionsof courts of appellate jurisdiction superior to that of the court in which therule is sought to be invoked: Broome v. Cassell & Co. [1972] A.C. 1027. Topermit this use of the per incuriam rule would open the door to disregard ofprecedent by the court of inferior jurisdiction by the simple device of holdingthat decisions of superior courts with which it disagreed must have been givenper incuriam.[13] There can be no basis for departing from this fundamental principle in thiscase. On the contrary, the Solicitor-General's Reference provides a clear anddeterminative answer to the questions of law posed by the Police and I am required tofollow it. To the extent therefore Mr Haskett has submitted that the decision is wronglydecided is of no moment in the present appeal.13 Baker v The Queen [1975] AC 774 (PC) at 788 per Lord Diplock.[14] I also cannot see that there is any merit in Mr Haskett's submission that theSolicitor-General's Reference somehow allows for a different path to be consideredbased on his reading of the decision of Court of Appeal in Police v Tolich.14 Thatdecision approved wording in an earlier police procedure sheet on the basis that therehad been reasonable compliance for the purposes of s 64(2) of the Land Transport Act.The approach of the Court of Appeal in the Solicitor-General's Reference, in findingthat the Block J wording communicates the "sense and effect" of the warning requiredto be given to motorists by s 77(3A)(a), obviates the need to consider whether therehas been reasonable compliance, and in any event does not open up an alternativepathway for interpreting Block J.[15] I therefore accept the submissions made on behalf of the Police that theSolicitor-General's Reference is determinative of the questions at issue in this appeal.As a result, the answer to the first question is no and the appeal must be allowed.Decision[16] Th application for leave to appeal is granted.[17] The appeal is allowed:(a) the decision of Judge Field dated 30 September 2020 is overturnedpursuant to s 300(1)(e) of the Criminal Procedure Act 2011; and(b) a new trial is directed pursuant to s 300(1)(b)(ii) of the CriminalProcedure Act 2011._______________________________Powell J14 Police v Tolich (2003) 20 CRNZ 150 (CA).