Drink driving case winds up in Supreme Court after judge encourages defendant not to plead guilty

A drink-driver has lost his appeal to the country's highest court after an ongoing legal battle questioned whether he was charged for the same offending twice. Photo / NZME

A man pulled over by police and charged with drink-driving and breaching the conditions of his zero-alcohol license found himself in a rather unusual situation when the judge suggested he only plead guilty to one of the two charges.

The judge said the charges were essentially the same and it would be double jeopardy if he was to plead guilty to both.

But the judge’s advice was challenged - an appeal by police saw the High Court rule the advice was wrong, sparking a four-year-long legal battle.

The case made it all the way to the country’s highest court which this month ruled that defendant Cheyman Mitchell should have been convicted on both charges after all, referring the controversial charge back to the District Court.

The saga began when Mitchell was pulled over on Christchurch’s Brougham St at around 3am in September 2019. He had earlier been drinking with a friend.

He returned a breath alcohol reading of 649 micrograms per litre of breath and police charged him with both drink-driving and breaching the conditions of his license.

As he had two previous drink-driving convictions, Mitchell was subject to a zero-alcohol license.

Later that year he attempted to plead guilty to both charges in the Christchurch District Court, but Judge Raoul Neave invited him to plead guilty only to the drink-driving charge.

He was convicted on that charge and sentenced to 100 hours of community work, 12 months’ supervision and a driving disqualification of one year.

But for the breach of license charge, despite Mitchell wanting to plead guilty, Judge Neave suggested he make a special plea of ‘previous conviction’. Mitchell agreed.

Under the Criminal Procedure Act, a defendant can’t be prosecuted for the same offence twice - a defendant can make a special plea of ‘previous conviction’ if they believe this has occurred.

The court must then dismiss the charge if it finds the additional charge has arisen from the same set of facts. When a plea of previous conviction is lodged, its referred to another judge to consider.

Later the following year, District Court Judge Stephen O’Driscoll found the breach of license charge did stem from the same set of facts as the drink-driving charge and dismissed it.

It would have been a case of double jeopardy had the man been convicted of both, O’Driscoll found.

The Crown disagreed with this decision, appealing to the High Court which found Mitchell could indeed be prosecuted on both charges.

Mitchell himself then unsuccessfully appealed to the Court of Appeal, which agreed with the High Court’s findings.

In a last-ditch effort, Mitchell took his case to the Supreme Court which, nearly four years after he was first charged, this week dismissed his claim.

His lawyer Kerry Cook told the court that dual conviction was unnecessary duplication and would waste court resources and time. The provisions of both charges addressed the same social evil, he said. The fact his client was on a zero-alcohol license could be considered a factor at sentencing.

But the police’s lawyer Fraser Sinclair submitted that Mitchell committed two distinguishable unlawful acts. An adult who drives with alcohol in their system does not commit an offence per se, but they do commit an offence if they did so while subject to a zero alcohol licence.

The drink-driving charge arose from another breach of law - driving with over 400mcg per litre of breath, Sinclair said.

In its assessment, the Supreme Court found the charges were “substantially different in character from each other.”

“As Mr Sinclair submitted, one addresses a breach of discipline (the violation of licence conditions), whereas the other is a drink-driving offence (being concerned with impaired driving). The charges do not arise from the same facts.”

The appeal was dismissed and the breach of license condition charge will be referred back to the District Court.

Ethan Griffiths covers crime and justice stories nationwide for Open Justice. He joined NZME in 2020, previously working as a regional reporter in Whanganui and South Taranaki.