New Zealand Police v Tindall [2018] NZDC 22252

Published 26 February 2020

Special pleas — double-jeopardy — excess blood alcohol — zero alcohol licence — common punishable act — Land Transport Act 1998, ss 32, 56 & 57AA — Criminal Procedure Act 2011, ss 45, 46, 47, 147 & 151-156 — Crimes Act 1961, ss 10 & 31 — Filitonga v R [2017] NZCA 492 — Rangitonga v Parker [2016] NZCA 166, [2016] NZAR 768 — Smith v Hickson [1930] NZLR 43 (SC) — Ministry of Transport v Hyndman [1990] 3 NZLR 480 (HC) — R v Brightwell [1995] 2 NZLR 435 (CA) — Connolly v R [2010] NZCA 129 — R v Morgan (Thomas) [2005] 1 NZLR 791 (CA) — Vakavelo v Police [2013] NZHC 2541 — New Zealand Police v Broom [2015] DCR 157 — Waddell-Stephens v New Zealand Police [2016] NZHC 1480. The defendant had been charged with four offences under the Land Transport Act 1998 (the LTA). There were two for driving with excess blood alcohol and excess breath alcohol in the aggravated form (being a third or subsequent conviction for the same offence) and two for breaches of a zero alcohol licence. The defendant pleaded guilty to the excess blood alcohol charge and sought to enter a special plea of previous conviction for the zero alcohol charges pursuant to ss 45 and 46 of the Criminal Procedure Act 2011 (the CPA). Section 45 of the CPA permits several types of special pleas to be entered, and s 46 states that where a special plea of previous conviction is entered a court must dismiss the charge if it is satisfied that the defendant has been convicted of the same offence as the current charge arising from the same facts, or any other offence arising from those same facts. Counsel for the defendant argued that the charge in relation to the breach of the zero alcohol licence ought to be dismissed given the conviction in relation to the driving with excess blood alcohol charge, as both charges arose from the same set of facts. The prosecution argued that the phrase in CPA, s 46 "arising from the same facts" took the meaning as determined in the Rangitonga case "common punishable act", and that the two actions in the defendant's case were distinct. The act in relation to the excess blood alcohol charge was driving on the road with a blood alcohol level as specified in LTA, s 56, and the act in relation to the breach of the zero alcohol licence was the act of driving on the road while the holder of that licence in breach of the licence conditions (having consumed any amount of alcohol). The provisions of the CPA were intended to engage a factual analysis of the actions to determine whether they were sufficiently similar to engage the provisions. The Judge determined that the core punishable act in each case was sufficiently similar, the act being driving on a road with alcohol in the system. Relevant to the Judge's reasoning was the fact that the defendant had pleaded guilty to the more serious charge of aggravated excess blood alcohol, meaning he wasn't trying to escape the consequences of this offending. The Judge therefore allowed the defendant's application to submit a special plea of previous conviction, and the charges relating to the breach of a zero alcohol licence were dismissed. Judgment Date: 29 October 2018.