BIGNELL v NEW ZEALAND POLICE (Appeal against conviction and sentence) [2023] NZHC 128

BIGNELL v NEW ZEALAND POLICE (Appeal against conviction and sentence) [2023] NZHC 128 [8February 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2022-419-000047[2023] NZHC 128IN THE MATTER OF: an appeal against conviction and sentenceBETWEEN ROHAN LEITH BIGNELLAppellantAND NEW ZEALAND POLICERespondentHearing: 2 February 2023Appearances: A J Haskett for the AppellantB B Harris for the RespondentJudgment: 8 February 2023JUDGMENT OF TAHANA J(Appeal against conviction and sentence)This judgment was delivered by me on 8 February 2023 at 2.00pmRegistrar/Deputy RegistrarSolicitors/Counsel:Legal Defence Service Ltd/Road Legal Ltd, AucklandCrown Solicitor (Hamilton Legal), HamiltonIntroduction[1] The appellant, Rohan Bignell, was convicted and sentenced on one charge ofdriving with excess breath alcohol (third or subsequent)1 at the Hamilton DistrictCourt.[2] Judge B A Crowley found Mr Bignell guilty on 13 May 2022.2 In a separatesentencing decision given on 29 June 2022, Judge Crowley imposed a fine of $500and a disqualification period of one year and one day from the date of the hearing.3The imposition of the disqualification period is suspended until this appeal isdetermined.[3] Mr Bignell appeals both his conviction and sentence on the ground that theJudge erred in law and fact. Mr Bignell had driven a motor vehicle in a public carpark.The issue on appeal is whether the car park was a "road" for the purposes of the charge.Background[4] On Saturday 1 June 2019, just after 3.00 am, a security guard at Centre Placecarpark in Hamilton observed Mr Bignell returning to collect his car. The guardassessed Mr Bignell as being inebriated, took his ticket from him and alerted police.[5] Constable Barlow arrived at the car park at approximately 3.25 am andobserved Mr Bignell reversing his vehicle backward from the barrier arm back intothe car park. Constable Barlow spoke to Mr Bignell and observed signs of recentalcohol consumption. She then carried out breath test and blood sample procedures.Upon analysis, the sample was found to contain 107 milligrams of alcohol per 100millilitres of blood.[6] When questioned, Mr Bignell said he was heading to Mahoe Street.1 Land Transport Act 1998, s 56(2) and (4); maximum penalty of two years' imprisonment or $6,000fine, and the court must order the person be disqualified from holding or obtaining a driver licencefor more than one year.2 Police v Bignell [2022] NZDC 8354 at [27].3 Police v Bignell [2022] NZDC 14183 at [4].District Court decision[7] Judge Crowley issued a reserved judgment on 13 May 2022.4[8] At trial, Mr Bignell's defence counsel disputed the charge on two bases. First,that his right to legal advice was breached, and second, that he did not drive on "aroad" for the purposes of the Land Transport Act 1998 (the Act).[9] As the issue on appeal is the second matter, I repeat Judge Crowley'sassessment in full:5[23] Counsel handed up a number of cases [where] the definition of roadhas been considered by higher courts. I have found the decision of the Courtof Appeal in McBreen v Ministry of Transport to be of most assistance. CookeJ (as he then was) acknowledged that the definition involves places whichwould not normally be considered by the public as roads:Of course the definition of "road" is artificial to the extent that itincludes such a place [as a railway platform, or an escalator], but widedefinition may well be artificial in some aspects. That is often part oftheir purpose. With all respect to the various views that have beenexpressed judicially to the contrary, and while understanding thenatural reluctance to treat as a road something which is not one inordinary speech, I can see no justification for reading down theordinary and natural meaning of "any place to which the public haveaccess".[24] The place in McBreen was a public park. At the relevant entrances tothe park there was a sign prohibiting motor vehicles from entering the park.In my view, the Court of Appeal's emphasis was on the protection of the publicwho have access to the park, rather than a strict definition of the word "road".[25] It seems to me from reading that case and the decision of Police vSmith that it is the nature of the place which is the key consideration. Theessential question is whether the place is open to the general public whetherby way of right or not, or whether it is private property. In Smith, the placewas [a] private driveway and held not to be a road and this decision wasfollowed by Heath J in Taylor v Police.[26] This case involves a public carpark. The public are invited to parktheir cars while they shop in the attached shopping mall. Providing any personis prepared to pay the parking fee, everyone is invited to use the carpark. It isvery clearly a place which is open to the public and safely falls within thedefinition of a "road" in the Land Transport Act. The issue in this case iswhether the carpark is still [a] place open to the public when the defendantwent there at 3 am. In my view it is. The essential nature of the space as aplace which is open to the public is not affected to the point where behaviour4 Police v Bignell [2022] NZDC 8354. The hearing took place on 6 May 2022.5 Footnotes omitted. See: McBreen v Ministry of Transport [1985] 2 NZLR 496 (CA); Police vSmith [1976] 2 NZLR 412 (SC); and Taylor v Police High Court Auckland A57/02, 3 July 2022.which is the subject of the Land Transport Act and which might endanger thepublic should be allowed. At any time, the carpark is open, any person canenter the carpark with a view to use the facilities. After the carpark is closedfor the night, the same applies, but a person must be prepared to pay the feefor the call out of a security guard to allow entry into the carpark. Mr Bignellin his evidence attempted to portray a situation as one where every person willnot be permitted to enter the carpark after hours unless they produced a validparking ticket to the security guard. I do not accept his evidence on that pointand did not hear from the security guard or see the sign fixed to the exteriorof the gate. In my view the carpark is inherently a public space and is thereforea road for the purposes of the Land Transport Act. This ground of defencealso fails.[10] Being satisfied that the carpark was a road at the relevant time and for thepurposes of the Act, the Judge found Mr Bignell guilty of driving with excess bloodalcohol.Sentence[11] Judge Crowley issued brief sentencing notes on 29 June 2022.6[12] The Judge explained that Mr Bignell was not eligible for a guilty plea discount,having defended the charge. He acknowledged that Mr Bignell's two prior drivingconvictions were historic, and he had recently engaged with Harmony Trust to addresshis drinking habits.[13] The fine of $500 was set on the basis that the blood alcohol level was"moderate" and offending history was "not excessive."[14] Judge Crowley explained that he was bound by legislation to disqualifyMr Bignell from driving for "more than" one year, given his previous convictions.The disqualification period of one year and one day was therefore the minimum theJudge could impose in law.[15] The Judge also ordered Mr Bignell to pay the associated blood analysis fee andmedical expenses, totalling $191.99.6 Police v Bignell [2022] NZDC 14183.Legal principles on appeal[16] The Criminal Procedure Act 2011 provides a right of appeal againstconviction.7 The appellate court must allow an appeal against a judge-alone trial if theCourt is satisfied that:8(a) the Judge erred in the assessment of the evidence to such an extent thata miscarriage of justice has occurred; or(b) a miscarriage of justice has occurred for any reason.[17] A miscarriage of justice means any error, irregularity, or occurrence in or inrelation to or affecting the trial that:9(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[18] The Criminal Procedure Act also provides a right of appeal against sentence.Section 244 provides in part:(1) A person convicted of an offence may appeal under this subpart to thefirst appeal court against the sentence imposed for that offence, unlessthe sentence is one fixed by law.[19] The appellate court must allow the appeal if satisfied that, for any reason, thereis an error in the sentence imposed on conviction and a different sentence should beimposed. In any other case, the appellate court must dismiss the appeal.10Relevant law[20] The Land Transport Act sets out offences and penalties for driving whileintoxicated. Section 56 relevantly provides:56 Contravention of specified breath or blood-alcohol limit7 Criminal Appeals Act 2011, s 229(1).8 Section 232(2)(b) and (c).9 Section 232(4).10 Section 250....(2) A person commits an offence if the person drives or attempts to drivea motor vehicle on a road while the proportion of alcohol in theperson's blood, as ascertained from an analysis of a blood specimensubsequently taken from the person under section 72 or section 73,exceeds 80 milligrams of alcohol per 100 millilitres of blood....(4) If a person is convicted of a third or subsequent offence againstsubsection (1) or subsection (2), or any of sections57A(1), 58(1), 60(1), or 61(1) or (2) (whether or not that offence is ofthe same kind as the person's first or second offence against any ofthose provisions),—(a) the maximum penalty is imprisonment for a term notexceeding 2 years or a fine not exceeding $6,000; and(b) the court must order the person to be disqualified fromholding or obtaining a driver licence for more than 1 year.[21] The intended scope of the term 'road' is set out at s 2(1) of the Act:road includes—(a) a street; and(b) a motorway; and(c) a beach; and(d) a place to which the public have access, whether as of right or not;and(e) all bridges, culverts, ferries, and fords forming part of a road or streetor motorway, or a place referred to in paragraph (d); and(f) all sites at which vehicles may be weighed for the purposes of this Actor any other enactment.Was the carpark a "road"?[22] The issue on appeal is narrow and turns on whether the carpark was a "road"by reason of being a place to which the public have access.[23] Mr Haskett for Mr Bignell submits that the prosecution failed to prove beyondreasonable doubt that there was public access to the carpark on the night in questionbecause access was limited by a gate and security guards. Mr Haskett submits thataccess was only to licensees, being those who held a parking ticket and therefore the"public" requirement was not met.[24] Before determining this issue, I identify the principles enunciated by the courtswhen considering the definition of "road" and in particular, the meaning of "place,""public" and "access."Approach to meaning of "place"[25] In Elvey v Police,11 Wild CJ held that a public carpark next to an aero club wasa road for the purposes of the Transport Act 1962. Wild CJ considered that "place"should be given its plain and ordinary meaning and additional restrictions on itsmeaning should not be imposed.12[26] This approach was also applied in Auckland City Council v Peacock,13 wherethe court held that a municipal carpark building was deemed a "road" notwithstandingthe structure and appearance not resembling a road or street as commonly understood.[27] Peacock involved a case stated so the court was not required to determinewhether the facts supported the carpark being a place to which the public have access.In that case, the magistrate had stated as a fact that the public would have access to thecarpark. The question was answered on that basis with Chilwell J observing that:14 Having myself examined the notes of evidence in the lower court I am farfrom satisfied that there was sufficient evidence to support that statement offact. However, Mr Thorp is bound by the case as stated. [28] The above decision, while helpful when considering the meaning of "place",does not assist in determining the question of "access." It highlights that the issue isa factual one.[29] Based on the above decisions, I am satisfied that the inherent nature of acarpark does not exclude it from being a "place" for the purposes of the Act.11 Elvey v Police [1969] NZLR 21 (SC).12 At 23.13 Auckland City Council v Peacock [1978] 1 NZLR 771 (SC).14 At 776.Approach to meaning of "public"[30] Police v Smith15 provides helpful guidance on the meaning of "public." In thatcase, Mr Smith successfully appealed a conviction under s 60 of the Transport Act1962 for using a motor vehicle on a road carelessly. The incident took place on adriveway on private property leading from a road to a building where a social functionwas being held. Admission to the function was by ticket only. The appellant had notpurchased a ticket but had been told he would be able to purchase one on arrival anddid so. The incident occurred when he was leaving.[31] In Smith, the Court considered that the definition requires that the generalpublic has access.16 In that case, there was no evidence that the general public wasentitled to go on to the driveway:17It is clear that only those places to which the public – that is, the general public– have access, as of right or not, constitute "roads". The evidence in this caseis clear and unequivocal that it is private land – there is no evidence that anymember of the public is entitled to go on it or does go on it, whether or not byany right, except for business or social purposes. It is not, in other words, aplace to which the public in general resort as a matter of course, though notnecessarily of right. It seems to me that this clearly brings it within the testlaid down in the case of Harrison v Hill 1932 SC (J) 13, 16, where that verydistinction was clearly made. It is not enough that premises or a place may bephysically open for the public to wander in on. It must be that they are soopen and so well known to be open that in fact the public do, either continually,or from time to time, without asking anybody's permission, enter upon them.If they do that, it is a place to which the public have access whether as of rightor not, and it is a road.[32] The above passage indicates that access may be continual or from time to timeprovided the place is one of which the general public are aware and commonly go.[33] In the Court of Appeal decision in McBreen v Ministry of Transport,18 CookeJ noted that the "public" cannot be a narrow class of invitee. Mr Haskett submits thatticket holders for a carpark on private land are licensees and not members of the publicso the "public" requirement is not met. I do not consider this submission is consistentwith the plain and ordinary meaning of the word "public" or "access." If all members15 Police v Smith [1976] 2 NZLR 412 (SC).16 At 413.17 At 413.18 McBreen v Ministry of Transport [1985] 2 NZLR 495 (CA) at 498.of the public are entitled to access by obtaining a ticket they have access. I also do notconsider those same persons change from being members of the public to beinglicensees after hours because the conditions to gain entry change. That would requirean interpretation of "public" that is inconsistent with Smith. Provided the place is oneof which the general public are aware and commonly go whether continually or fromtime to time, the place is one to which the public have access.[34] The question I have to consider is whether in interpreting "public," the Courtis to limit the meaning to a particular point in time so that if after hours, access isrestricted to existing ticket holders only, this changes the nature of the persons entitledto enter. On this issue, Judge Crowley concluded the general public were entitled toaccess:19[26] This case involves a public carpark. The public are invited to parktheir cars while they shop in the attached shopping mall. Providing any personis prepared to pay the parking fee, everyone is invited to use the carpark. It isvery clearly a place which is open to the public and safely falls within thedefinition of a "road" in the Land Transport Act. The issue in this case iswhether the carpark is still [a] place open to the public when the defendantwent there at 3 am. In my view it is. The essential nature of the space as aplace which is open to the public is not affected to the point where behaviourwhich is the subject of the Land Transport Act and which might endanger thepublic should be allowed. At any time, the carpark is open, any person canenter the carpark with a view to use the facilities. After the carpark is closedfor the night, the same applies, but a person must be prepared to pay the feefor the call out of a security guard to allow entry into the carpark. Mr Bignellin his evidence attempted to portray a situation as one where every personwill not be permitted to enter the carpark after hours unless they produced avalid parking ticket to the security guard. I do not accept his evidence on thispoint and did not hear from the security guard or see the sign fixed to theexterior of the gate. In my view the carpark is inherently a public space andis therefore a road for the purposes of the Land Transport Act. This ground ofdefence fails.(emphasis added)[35] The onus is on the appellant to satisfy the appeal court that it should differ fromthe decision under appeal. It is only if I consider that the decision is wrong that I amjustified in interfering with it.20 The appellate court is obliged to form its ownassessment of the findings of fact and the weight to be given to evidence.2119 Police v Bignell [2022] NZDC 8354.20 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].21 At [19].[36] The appellant says that access was so tightly controlled that it cannot beregarded as access to the "public." The absence of evidence from the security guardsor the sign on the gate, Mr Haskett argues, indicates that the prosecution failed todischarge the burden of proof. I accept that it was for the prosecution to prove beyondreasonable doubt that the carpark was a place to which the public have access.[37] There was however, evidence about the sign on the gate. Mr Bignell gaveevidence that he had taken a photo of the sign and the notes of evidence record that heread from the photo:For any access after hours, $50 cash callout is payable. For after-hours access,phone 078318106.[38] Mr Bignell obtained access in this way. At [26], the Judge rejectedMr Bignell's suggestion that not everyone would be entitled to access the carparkunless they produced a valid parking ticket. Mr Bignell's evidence was that he wasrequired to show his parking ticket to the security guards. The Judge had the advantageof assessing the credibility of Mr Bignell's evidence regarding the ticket and in thosecircumstances, it is appropriate to be hesitant about interfering with that finding.22[39] The information Mr Bignell gave about the sign did not limit the class ofinvitees or require that only those with parking tickets are entitled to access thecarpark. If, as Mr Bignell says, a ticket was required, persons holding those ticketswere members of the public and those persons continued to have access to the carparkafter hours. It would result in an absurd outcome if temporary changes to access ruleschanged a place from being a "road" at one time of the day but not the other. This isespecially so if at all times members of the public may be present at the place. Thefact numbers may be reduced because of night access rules, does not change the placefrom being a place to which the public have access.[40] The definition of "public" should not be unreasonably constrained. Theapproach the appellant advances requires a too narrow interpretation of "public" and"access." The Court of Appeal in McBreen emphasised the purpose of the Act is the22 At [5].protection of the public so that "public" and "access" should be given their plain andordinary meanings with an eye to the purpose of the Act.[41] Mr Haskett, for Mr Bignell, submits that the security guards had noticed thatMr Bignell was intoxicated and had deliberately prevented him from being able toleave the carpark. Mr Haskett submits that on this basis, security would also haveprevented other members from entering the carpark for their safety. I do not considerthis evidence establishes a reasonable doubt that the carpark could not be accessed bythe public at that time. It is evidence of the restrictions on Mr Bignell, but it does notraise a reasonable doubt as to restrictions imposed on members of the public incircumstances where the sign says they are entitled to access.[42] Mr Haskett also submits that the fact Constable Barlow was able to enter thecarpark does not prove beyond reasonable doubt that the carpark was publiclyaccessible given Constable Barlow was a police officer. I do not consider that thisevidence establishes a reasonable doubt that the public could not access the carpark incircumstances where there is evidence that access can be gained by calling the securityguards.[43] I therefore accept that the evidence establishes that the carpark was a place towhich the public have access. Mr Bignell gained access because he was a member ofthe public. It would be a too narrow interpretation of "public" to hold that Mr Bignellwas a licensee at night but a member of the public during the day simply becauseaccess was limited to ticket holders at night. I do not consider that the security guardsrestricting Mr Bignell's movements nor the entry of Constable Barlow raises areasonable doubt that the public did not have access.[44] In these circumstances, I am not satisfied that the Judge erred. On my ownassessment of the evidence, I agree with the Judge's finding that the carpark was aplace to which the public have access.[45] Given my finding on the conviction, I consider that the sentence wasappropriate.Result[46] The appeal is dismissed.______________________Tahana J