Trial counsel allegedly erred by not cross-examining constable about inconsistent evidence
The New Zealand Court of Appeal issued leave to bring a second appeal against a conviction for driving with excess blood alcohol upon finding a reasonably arguable error in the High Court decision that might constitute a miscarriage of justice.
In O'Brien v Police [2026] NZCA 393, the applicant wanted to attend a music concert at Coroglen, a remote location in the Coromandel. On 30 December 2021, he travelled with some friends from Hamilton to Whitianga for that purpose.
The applicant bought a return shuttle bus ticket between Whitianga and Coroglen. However, after the evening concert, he missed the shuttle bus and was stranded.
The appellant said a utility vehicle – containing two people he did not know, specifically the vehicle owner and their acquaintance – picked him up while he was walking along the road from the concert venue.
In a Whitianga supermarket carpark at around 10:50 p.m., police officers stopped the utility vehicle. Police believed the vehicle was involved in a sustained loss of traction incident at Coroglen.
As police were leaving their vehicle and walking over, the driver moved into the utility vehicle’s back seat, and the applicant exited using the left rear passenger door.
While the applicant did not disagree that he had been drinking, he argued that he was not the driver and that the loss of traction event happened before the two others picked him up.
Before the District Court of New Zealand at Thames, Judge Saunders acknowledged that it was “a very fine line” but ultimately found proof beyond a reasonable doubt to convict the applicant of driving with excess blood alcohol.
In reaching this conclusion, Judge Saunders considered the police officers’ visual observations and recognised the dangers of identification evidence.
In a conviction appeal, the applicant alleged that trial counsel erred by failing to cross-examine Constable Ngauam regarding his evidence’s inconsistency and by failing to advise the applicant to give evidence in his own defence.
Judge Jagose of the High Court determined that the constable’s formal witness statement was consistent with his trial evidence, which was more specific, and did not undermine the trial evidence’s credibility.
According to Judge Jagose, the applicant’s evidence was unnecessary in the course of the trial because Judge Saunders already had the applicant’s denial, restricted licence, and shuttle ticket.
Before the Court of Appeal, the applicant applied for leave to bring a second conviction appeal on similar but reframed grounds as his arguments before the High Court of New Zealand.
The appeal court granted his leave application upon finding an arguable error in Judge Jagose’s approach.
The appeal court pointed out that Judge Jagose based his reasoning on the occupied state of the right rear passenger seat, which would mean that the driver could only have moved to the rear left passenger seat.
However, the appeal court explained that the trial’s key issues included:
The appeal court emphasised the importance of the constable’s memory of what he saw that night to Judge Saunders’ decision by a “very fine line” to find proof beyond a reasonable doubt.
Here are some other recent New Zealand decisions involving motor vehicles.
In proceedings arising from an incident involving a driver stopped close to a police alcohol checkpoint, the New Zealand Supreme Court issued a 14 August 2026 decision affirming the findings that the officer breached s 22 but not ss 23(1)(b) and (5) of the New Zealand Bill of Rights Act 1990.
Seeing no apparent miscarriage of justice and no error in an assessment of the position advanced, the Supreme Court made a 15 April 2026 decision denying an application for leave to appeal against the Court of Appeal of New Zealand’s dismissal of an appeal against a conviction of murder using a car.
The Supreme Court of New Zealand issued a 16 October 2025 decision dismissing two applicants’ requests for leave to appeal a judgment regarding the length of their disqualifications from driving following multiple charges of driving with excess alcohol under s 56 of the Land Transport Act 1998.
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