Schulte v New Zealand Police [2018] NZDC 20585

Published 12 September 2019

Application to vacate guilty plea — driving with excess breath alcohol — unlawful arrest — inadequate legal advice — Thompson v Police, HC, Wellington Registry, AP 22/92, Heron J — Police v Chadwick [2002] DCR 880 — Yoganathan v R [2017] NZCA 225 — Sharp v District Court, Whangarei [1999] NZAR 221 — Criminal Procedure Act 2011, s 115 — Land Transport Act 1998, ss 56, 58, 120 — Crimes Act 1961, s 315 — Evidence Act 2006, s 30. The applicant applied to vacate a guilty plea on a charge of driving with excess breath alcohol. He argued that when he originally entered the guilty plea he had lacked competent legal advice and was unaware that he had an arguable defence to the charge: that after failing a roadside breath test, he had been unlawfully arrested and handcuffed. Section 115 of the Criminal Procedure Act says that guilty pleas may be withdrawn by leave of the Court. According to established guidelines over the granting of leave to with draw a guilty plea, guilty pleas can only be withdrawn if it is in the interests of justice. The onus of making out grounds to vacate the plea rests on the applicant and guilty pleas can be vacated if there is a reasonable defence to the charge that the applicant was unaware of when pleading guilty. The charge in this case arose from an incident when the applicant's driving had aroused the suspicions of a police officer. The officer breath tested the applicant and the result showed the applicant well over the legal breath alcohol limit. The officer then arrested the applicant. He later explained that he would not normally arrest people in these circumstances, but he decided to do so because the applicant's belligerent attitude and comments about drugs caused the officer to become concerned for his safety. In making the arrest, the officer relied on s 120 of the Land Transport Act which provides a power of arrest where an officer has good cause to suspect that a person has committed an offence, including drunk driving. The Court considered that in the circumstances, the officer had reasonable grounds to suspect that the applicant had been driving drunk. Therefore the arrest was valid, the applicant had no reasonably arguable defence to the charge and to allow the plea to be vacated would be contrary to the interests of justice. The Court concluded by making some obiter comments about the application of the power of arrest, contained in s 315 of the Crimes Act, and the rules for exclusion of evidence, per s 30 of the Evidence Act.