New Zealand Police v Kumar [2019] NZDC 17758

Published 25 February 2020

Special plea — plea of previous conviction — double jeopardy — driving with excess breath alcohol — driving contrary to zero alcohol licence — Police v Tindall [2018] NZDC 22252 — Rangitonga v Parker [2016] NZCA 166 — Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73 — New Zealand Police v Pailegutu [2019] NZDC 2135 — New Zealand Police v Smith, Judge N J Sainsbury, 9 May 2018, CRI-2017-088-003472 — Criminal Procedure Act 2011, ss 45(1)(a), 46(1) & 47 — Land Transport Act 1998, ss 5, 32 & 56. The defendant faced charges of driving with excess breath alcohol and driving contrary to a zero alcohol licence. He pleaded guilty to the first charge, but with regard to the second sought to enter a plea of previous conviction, arguing that he was able to do so because of his guilty plea to the first charge. The Police argued that the defendant should not be allowed to enter the plea of previous conviction, as the two charges related to separate offences. The Court assessed previous relevant decisions, finding that the District Court decisions of Tindall and Pailegutu had allowed special pleas in identical circumstances, on the grounds that driving with excess breath alcohol and breaching a zero alcohol licence were essentially the same offence. However a third District Court decision in Smith had reached the opposite conclusion, finding that the purpose of the offence of driving with breath alcohol was to set limits on alcohol consumption in the interests of road safety, while the purpose of the offence of driving contrary to a zero alcohol licence was to punish breaches of lawful restrictions on the ability to drive. The Court agreed the decision in Smith, reasoning that the punishable act in a driving with excess breath alcohol charge is driving with breath alcohol over a certain prescribed limit, while the punishable act in a driving contrary to a zero alcohol licence charge is driving with any breath alcohol at all. Further, the latter charge involves breaching an order of the Court, which should not go unpunished. The Court disallowed the plea of previous conviction. Judgment Date: 11 September 2019.