Bai v Police - [2017] NZHC 254

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000130 [2017] NZHC 254

BETWEEN
YI FAN BAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 21 February 2017

Appearances:

P J Doody for Appellant
B Hawes for Crown

Judgment:

23 February 2017

JUDGMENT OF DUNNINGHAM J

[1] The appellant, Mr Yi Fan Bai, appeals his conviction on a charge of driving with excess breath alcohol contrary to s 56(1) of the Land Transport Act 1998. His breath alcohol reading was 607 micrograms of alcohol per litre of breath, more than twice the legal limit for adult drivers of 250 micrograms.

[2] He was convicted in the District Court on 21 October 2016 and fined $700, ordered to pay Court costs of $130 and disqualified from driving indefinitely, although with leave to apply, in three months time, for a licence on the basis that an alcohol interlock device was fitted to his car.

Grounds of appeal

[3] The appellant appeals his conviction on two grounds. He says the District Court Judge erred in finding that there had not been a breach of s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) and the Judge erred in his
assessment that, even if a breach had occurred, exclusion of the evidence would not

BAI v NEW ZEALAND POLICE [2017] NZHC 254 [23 February 2017]

be proportionate to the breach under s 30 of the Evidence Act 2006, because it failed to take account of alleged bad faith on the part of the police.

Background

[4] In the early hours of the morning on 3 January 2016, the appellant was driving down Manchester Street in central Christchurch when he was seen by police to drive through a red traffic light and was pulled over as a result.

[5] When asked if he had been drinking alcohol that evening he responded that he had consumed one beer. A breath screening test was administered which provided a reading of over 400 micrograms of alcohol per litre of breath. The appellant was then asked to accompany the constable back to Christchurch Police Station for the purpose of undertaking an evidential breath test, blood test, or both. The appellant was informed of his rights, and when asked, he indicated that he understood those rights.

[6] Once at the police station the appellant was again informed of his rights and asked whether he would like to speak to a lawyer. He replied that he would like to speak to his lawyer, Mr Andy Gao. The appellant provided the constable with Mr Gao’s contact details and the constable called the number, but there was no answer. The constable then provided the appellant with the list of available lawyers prepared under the Police Detention Legal Assistance (PDLA) service. From that list a further eight lawyers were called, but none answered the telephone. This process took some 20 minutes. After this, the constable made a further telephone call to Mr Bai’s own lawyer and again there was no answer. He…

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 Bai v Police

Details

AGLC: Bai v Police [2017] NZHC 254
Case: [2017] NZHC 254
Decision Date: 23 February 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the appellant, Mr Yi Fan Bai, appealed against his conviction for driving with excess breath alcohol, a charge brought under section 56(1) of the Land Transport Act 1998. Mr Bai's breath alcohol reading was significantly above the legal limit, leading to his conviction in the District Court. The appellant argued that the District Court erred in finding no breach of section 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) and in its assessment that excluding the evidence would not be proportionate under section 30 of the Evidence Act 2006.

The court considered the appellant's primary claim that the constable failed to adequately facilitate his access to legal advice as required by section 23(1)(b) of NZBORA. The court examined the reasonable steps taken by the constable to allow Mr Bai to consult a lawyer, including multiple attempts to contact the appellant's own lawyer and other lawyers on a duty list. The court concluded that the constable's efforts were reasonable and did not amount to a breach of the appellant's rights under NZBORA. The court further rejected the claim of bad faith on the part of the constable, finding that the constable's actions were not motivated by malice or dishonest intent.

As a result of these findings, the court did not need to consider whether the exclusion of the evidence was proportionate to the alleged breach under section 30 of the Evidence Act 2006. The appeal was dismissed, and the conviction upheld.

Orders