JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
REASONS
(Given by Wilson J)
Introduction
[1]       Mr Aylwin, an off-duty police officer, failed a breath screening test after being stopped while driving. He refused to accompany the Police Officers who had stopped him to a Police Station to complete an evidential breath test or a blood test, and was forcibly required to do so. At the Police Station, Mr Aylwin failed an evidential breath test. He was advised of his right to request a blood test but did not do so.
[2] Mr Aylwin was charged under s 59(1)(b) of the Land Transport Act 1998 with failing to accompany an enforcement officer when required to do so and under s 56(1) of the Act with driving with excess breath alcohol. The convoluted passage of the proceedings through the District Court and the High Court is set out in the judgment of the Court of Appeal,[1] and need not be repeated.
[1]R v Aylwin [2008] NZCA 154 (Glazebrook, Hammond and O’Regan JJ). This was however a summary prosecution; the Crown has never been a party to it. The correct respondent is therefore the New Zealand Police.
[3]       The issues before the Court of Appeal were whether, in relation to both offences, it was necessary for the Crown to prove compliance with the procedure specified in the relevant Gazette Notice. The Court of Appeal held that it was not; “it is not fatal if the prosecution fails to give evidence of the manner in which the breath screening and evidential breath tests were administered”.[2] The Court held that it is sufficient for the prosecution to lead evidence that a test was administered and a result obtained. Section 64(4) and (5) of the Act, which apply to the excess breath alcohol charge but not to that of failing to accompany, then preclude any defence on the basis of error, and the right to elect a blood test operates to protect any dissatisfied motorists who consider that there has been an error. The Court of Appeal thus upheld Mr Aylwin’s conviction on both charges. He subsequently obtained leave to appeal to this Court.
The failing to accompany charge
[2] At para [66].
[4]       The provisions of the Land Transport Act relevant to this charge are:
59       Failure or refusal to remain at specified place or to accompany enforcement officer
(1)       A person commits an offence if the person—
…
(b)Fails or refuses to accompany without delay an enforcement officer to a place when required to do so under section 69;
…

69 Who must undergo evidential breath test
(1)An enforcement officer may require a…

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.

Continue reading Aylwin v Police

Details

AGLC: Aylwin v Police [2008] NZSC 113
Case: [2008] NZSC 113
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of Aylwin v Police was heard, where the appellant, Mr. Aylwin, an off-duty police officer, was charged with failing to accompany a police officer to a police station after a breath screening test indicated that he had excess breath alcohol, and with driving with excess breath alcohol. The Court of Appeal had previously upheld Mr. Aylwin's conviction on both charges, but he sought leave to appeal to the Supreme Court.

The primary legal issue in this case was whether the Crown had to prove compliance with the procedure specified in the relevant Gazette Notice. The Court of Appeal held that it was not necessary for the Crown to prove compliance with the procedure. The Court found that it was sufficient for the prosecution to lead evidence that a test was administered and a result obtained. The Court held that sections 64(4) and (5) of the Land Transport Act 1998 preclude any defence on the basis of error and the right to elect a blood test operates to protect any dissatisfied motorists who consider that there has been an error.

The Supreme Court dismissed the appeal and held that the prosecution was required to establish that Mr. Aylwin underwent a breath screening test, having been lawfully required to do so, and that it appeared to the officer administering the test that the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath. The prosecution evidence established both those elements and was not challenged in any material respect. The Supreme Court held that the right to elect a blood test provides effective protection against the consequences of an error in a breath screening test or an evidential breath test.

The appeal was dismissed, and the case was remitted to the District Court for entry of a conviction on both charges and sentencing. The Supreme Court emphasised the importance of ensuring that drivers who consume alcohol and drive do not escape responsibility through technical and unmeritorious defences.

Orders