Andrews v Police - [2014] NZHC 141

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000302 [2014] NZHC 141

BETWEEN JACKO ANDREWS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 10 February 2014

Appearances: S Blake for the Appellant
B Hamlin for the Respondent

Judgment: 13 February 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 13 February 2014 at 9.00 am

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

ANDREWS v POLICE [2014] NZHC 141 [13 February 2014]

Introduction

[1] The appellant, Mr Andrews, challenges a conviction entered against him on

15 October 2013, following a defended hearing for driving with excess breath alcohol contrary to s 56(1) of the Land Transport Act 1998. Mr Andrews was sentenced to 90 hours’ community work, nine months’ supervision, nine months’ disqualification and indefinite disqualification with leave to apply for a zero alcohol license under s 65B of the Land Transport Act. This latter order was made because Mr Andrews’ conviction was his third for the same offence. The Court considered that it was required to make the order pursuant to s 65B.

[2] Mr Andrews initially appealed against both conviction and sentence. The appeal against sentence asserted that 65B of the Act was not in force at the time of the offending and that the Judge had erred in applying it retrospectively. However, when the appeal was called, Mr Blake accepted the Crown’s submission that the section was in force at the relevant time and that there had been no retrospective application of the provision. He withdrew the appeal against sentence.

[3] Accordingly, the only appeal before me relates to Mr Andrews’ conviction.

In brief, the issues can be stated as follows:

(a) When was the result of the evidential breath test ascertained?;

(b)Was s 77(3) of the Act complied with so as to make the result admissible?;

(c) If not, was there reasonable compliance sufficient to invoke s 64(2)?

Factual Background

[4] At about 10.30 pm on Saturday, 5 October 2012, Mr Andrews was driving erratically. He was stopped by an enforcement officer, Constable Zander.

[5] Mr Andrews immediately admitted that he had been drinking. Constable Zander administered a passive alcohol breath test. It registered a pass

result. Mr Andrews then told the officer that “the machine must be broken, because [he had] been drinking”. The officer recalled that the evening was windy but that Mr Andrews smelt strongly of alcohol. He also gave evidence that Mr Andrews was slurring his words as he spoke and that his eyes were bloodshot.

[6] Constable Zander then required Mr Andrews to undertake a breath screening test, using an approved device. This test indicated that Mr Andrews had a breath alcohol level of more than 400 micrograms per litre of breath. Mr Andrews was formally detained and he was given a Bill of Rights warning at the roadside. He was then required to accompany the constable to the Papakura Police Station for further testing.

[7] Mr Andrews and Constable Zander arrived…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 141
Decision Date: 13 February 2014

CaseChat Overview and Summary

In Andrews v Police, the appellant, Mr Andrews, appeals against his conviction for driving with excess breath alcohol, arguing that the evidential breath test result was inadmissible. Mr Andrews was stopped by Constable Zander, who administered a breath screening test that indicated Mr Andrews had a breath alcohol level of more than 400 micrograms per litre of breath. Mr Andrews was then required to undergo an evidential breath test, but the machine used failed to print out a record of the results. The first sample given by Mr Andrews had produced a reading of 632 micrograms of alcohol per litre of breath, and the second sample had produced a reading of 606 micrograms of alcohol per litre of breath. Constable Zander did not further attempt to extract a printout from the machine at that time. He did not know how to do so. He gave evidence that Mr Andrews was seated beside him and that he showed Mr Andrews the screen on the machine when the breath test results were displayed on it. According to Constable Zander, when he showed the display screen on the machine to Mr Andrews, he told Mr Andrews that that was the evidential result that the machine had produced. Mr Andrews denies the resulting charge of driving with excess breath alcohol, and on 7 May 2013, he appeared in the Papakura District Court for a defended fixture in relation to the charge. The District Court Judge found that the charge had been proven, and Mr Andrews was sentenced. Mr Andrews appeals against his conviction. The appeal is dismissed. The Court finds that the evidential breath test result was properly admitted, and the various matters which the prosecution was required to prove beyond reasonable doubt were made out.

Orders