HOUSDEN v NEW ZEALAND POLICE [2018] NZCA 60

HOUSDEN v NEW ZEALAND POLICE [2018] NZCA 60 [21 March 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA569/2017[2018] NZCA 60BETWEEN OWEN COLIN HOUSDENApplicantAND NEW ZEALAND POLICERespondentCourt: Cooper, Ellis and Katz JJCounsel: Applicant in PersonJ E Mildenhall for RespondentJudgment:(On the papers)21 March 2018 at 10.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] Mr Housden was convicted after a judge alone trial in the District Court oncharges of:1(a) refusing to accompany an enforcement officer to a place where anevidential breath test could be taken;2 and1 New Zealand Police v Housden [2017] NZDC 13029.2 Contrary to s 69 of the Land Transport Act 1998.(b) refusing to permit a blood specimen to be taken.3He was sentenced to 100 hours' community work and disqualified from drivingindefinitely.4[2] He now seeks leave to bring a second appeal against both his conviction andsentence.5 The application for leave is to be determined on the papers and separatelyfrom the proposed appeal.[3] We have concluded that leave to appeal should not be granted for the reasonswhich follow.[4] The legality of the actions of an enforcement officer in requiring Mr Housdento accompany him or her and then to undergo an evidential breath and/or blood test,depends on Mr Housden first having failed or refused to undergo a breath screeningtest.6 Although in the District Court Mr Housden disputed that he had been asked totake a breath screening test at all, he seems now to accept that, as the District CourtJudge found, he refused to do so.[5] The sole point sought to be raised by Mr Housden in his proposed appeal isthat he could not be required to undergo a breath screening test because there was noevidence that he had been driving. As was made clear by the evidence given by thePolice at his trial, that was a point he made repeatedly to the Police at the time of theevents in question.[6] In order to grant leave to bring a second appeal the Court must be satisfied thatthe appeal involves a matter of general or public importance or that a miscarriage of3 Contrary to s 72 of the Land Transport Act 1998.4 New Zealand Police v Housden [2017] NZDC 15732.5 Leave is required under ss 237 (conviction) and 253 (sentence) of the Criminal Procedure Act2011.6 Section 69(1)(c) of the Land Transport Act provides that where someone refuses to undergo abreath screening test after having been required to do so by an enforcement officer under section68 the officer may require that person to accompany the officer to a place where the person canundergo an evidential breath test or a blood test (or both).justice may have occurred or may occur unless the appeal is heard.7 The threshold isa high one.[7] There can be no question that the threshold is not met in this case. To the extentthat the point raised by Mr Housden is factual, it is particular to his case and cannotbe of any wider importance. To the extent the point is a legal one, it is without merit.Section 68(1)(b) of the Land Transport Act 1998 does not require proof of driving.Rather, it empowers an enforcement officer to require a person whom the officer hasgood cause to suspect has recently committed an offence against this Act that involvesdriving to undergo a breath screening test.[8] In Mr Housden's case, the evidence at trial was that, in the early hours of1 April 2016, police had been alerted to a possible drunk driver on Hurstmere Rd inTakapuna. Upon arriving at Hurstmere Rd the officers found Mr Housden in thedriver's seat of his van. The van was parked across a footpath with the keys in theignition and the engine running. One of the officers recognised Mr Housden from anencounter earlier that evening a short distance away, when she had been dealing withbreaches of a liquor ban. She had formed the view then that he was intoxicated, andhe was still manifesting clear signs of intoxication.[9] On any analysis, this evidence supports the conclusion that there were groundsfor believing that Mr Housden had recently been driving while under the influence.The statutory precondition imposed by s 69 was therefore met. There can be no riskof miscarriage here.[10] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent7 Sections 237(2) and 253(3).