Police have made a rare legal move to overturn a judge's decision to award a drink-driving sportswoman a discharge without conviction and permanent name suppression.
High Court Justice Christopher Allan has been asked to consider the case against the sportswoman, and Crown Law is seeking to have a conviction recorded against her and name suppression lifted.
In the High Court at Gisborne last week, lawyers for the sportswoman argued the "frivolous" appeal should be dismissed and said a conviction would impact on her opportunities to compete at an international level.
Auckland lawyer Zahir Mohamed, who specialises in drink driving cases, accused police of buckling under the pressure of the public backlash after the sportswoman's case was reported in the media.
Mr Mohamed told the court the appeal resulted from an "unholy alliance between police and the media" and the original decision should remain.
A spokeswoman for police yesterday (Tue) said there was "absolutely no pressure whatsoever from the media at all".
"The decision [to appeal] was based on a review of the case and taking into account all legal facets of it," she said.
The spokeswoman said appeals of that nature were rare.
Judge Graham Hubble sparked outrage in January when he discharged the woman without conviction and granted her permanent name suppression in the Gisborne District Court.
She had been caught driving with a breath-alcohol level of 801 micrograms per litre of breath - double the legal limit of 400mcg.
Her lawyer, Marcia Insley, said the sportswoman had no previous convictions, had reached an "exceptional level" in her sport and had been offered a chance to compete overseas.
Judge Hubble said Ms Insley's submission was "persuasive" and he agreed to the discharge.
Police, with permission from the Solicitor-General, made the decision to appeal against Judge Hubble's ruling following criticisms by a Queen's Counsel, a former police officer and drink driving campaigners.
The sportswoman, who is overseas at the moment, will be called back to New Zealand to appear in court if Justice Allan rules that the case should be heard again.
Justice Allan could rule a conviction be recorded or dismiss the appeal altogether.
He will also decide whether the suppression order should remain, be reconsidered by Judge Hubble or be lifted.
Justice Allan told the court he intended to make his findings before June.
Crown Law last year successfully appealed against the discharge without conviction granted to an Auckland comedian for the sexual assault of his daughter. The man was called back to the District Court to be sentenced to eight months' home detention but retained his name suppression so as not to identify his victim.
Professor of criminal law Warren Brookbanks, of the University of Auckland, said the appeal in the sportswoman's case would determine if the "sentence was manifestly inadequate".
"That would be the legal test. Crown appeals against sentences which have been imposed by the court are pretty rare ... normally because the police are usually prepared to accept the decision of the judge and the judge's sentencing discretion," Prof Brookbanks said.
"But obviously where the police feel that the sentence is completely out of line with other sentences for similar offending, they do have that power to appeal on those grounds."
WHAT HAPPENS NEXT
Justice Allan has several options available to him. He can:
- Order the sentence be reconsidered by Judge Graham Hubble
- Order a conviction be recorded and the sportswoman return to New Zealand to be sentenced
- Rule the woman's name suppression should remain, be reconsidered by Judge Hubble or be lifted
- Refuse the Crown Law appeal
- Additional reporting Gisborne Herald
