SHREESH BASNYAT v NEW ZEALAND POLICE [2019] NZSC 21

SHREESH BASNYAT v NEW ZEALAND POLICE [2019] NZSC 21 [5 March 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 113/2018[2019] NZSC 21BETWEEN SHREESH BASNYATApplicantAND NEW ZEALAND POLICERespondentCourt: William Young, O'Regan and Ellen France JJCounsel: C Mitchell for ApplicantK Peirse-O'Byrne for RespondentJudgment: 5 March 2019JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant pleaded guilty in the District Court to a charge of driving withan excess proportion of alcohol in his blood, but sought a discharge withoutconviction. This was refused by Judge Ellis, who entered a conviction, imposed a fineof $800, ordered him to pay costs and medical fees, and disqualified him from drivingfor six months.1 He appealed unsuccessfully to the High Court against the refusal todischarge him without conviction2 and later sought the leave of the Court of Appeal toappeal against the High Court judgment. The Court of Appeal dismissed theapplication for leave to appeal, albeit the Court also addressed the substantive meritsof the appeal.3 The applicant now seeks leave to appeal to this Court.1 New Zealand Police v Basnyat [2017] NZDC 21099.2 Basnyat v Police [2018] NZHC 51 (Brewer J) [Basnyat (HC)].3 Basnyat v New Zealand Police [2018] NZCA 486 (French, Cooper and Williams JJ)[Basnyat (CA)].[2] The application for leave to appeal is formally addressed to the Court ofAppeal's decision. This Court, however, has no jurisdiction to hear appeals from arefusal by the Court of Appeal to grant leave to appeal.4 In the circumstances, wepropose to address the application as if it sought leave to appeal direct from the HighCourt judgment. Such an appeal is possible, but the granting of leave is subject to s 75of the Senior Courts Act 2016 and requires "exceptional circumstances" to beestablished. We note, as well, that the application for leave to appeal was filed out oftime. No point on this latter issue having been taken by the Crown, we propose to dealwith the application on its merits.[3] The reasons why the applicant sought a discharge without conviction wereaddressed in considerable detail in the judgments of both the High Court, dismissinghis primary appeal, and the Court of Appeal dismissing his application for leave toappeal. A discharge without conviction is not possible unless the court is satisfied thatthe consequences of a conviction "would be out of all proportion to the gravity of theoffence",5 a test which is unlikely to be met if neither the offending nor theconsequences are out of the ordinary (which, broadly, was the assessment of both theHigh Court and Court of Appeal in respect of this case).6 While there may be scopefor debate as to how this should be expressed (for instance by use of the words"extraordinary" or "exceptional"), we do not see this case as raising a question ofpublic or general importance. Nor is there any appearance of a miscarriage of justice.And, as well, the s 75 test of "exceptional circumstances" is not satisfied.[4] Accordingly, the application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent4 Criminal Procedure Act 2011, s 213(3).5 Sentencing Act 2002, s 107.6 Basnyat (HC), above n 2, at [29]–[32]; and Basnyat (CA), above n 3, at [22], [25] and [27]–[28].