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Barr v Police

Barr v Police

Case [2009] NZSC 109 21 October 2009

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IN THE SUPREME COURT OF NEW ZEALAND
SC 34/2009
[2009] NZSC 109
BETWEENLEROY JOHN BARR

Appellant

ANDNEW ZEALAND POLICE

Respondent

Hearing:8 October 2009

Court:Blanchard, Tipping, McGrath, Wilson and Anderson JJ
Counsel:K H Cook and A J Bailey for Appellant

A M Powell and B C L Charmley for Respondent

Judgment:21 October 2009

JUDGMENT OF THE COURT

A The appeal is allowed.
B The order for payment of medical expenses of $102.60 is set aside.
CIn substitution, the appellant is ordered to pay $93 towards medical expenses.

REASONS
(Given by Wilson J)

Introduction
[1]       The appellant, Mr Barr, pleaded guilty in the District Court to a charge of driving with excess blood alcohol. He was disqualified from driving for six months and was ordered to pay a fine of $600 and Court costs of $130. He was also ordered to pay the fee of $102.60 of the medical practitioner who took a blood sample from him (“medical expenses”) and the fee of $93 of the analyst who analysed that sample. There was no challenge to the jurisdiction of the District Court to make any of these orders.
[2]       Mr Barr appealed to the High Court on the single ground that there was no jurisdiction to order payment of the medical expenses.[1] He was successful. The Police appealed, by leave, to the Court of Appeal.[2] They were successful. The Court of Appeal held that the Costs in Criminal Cases Act 1967 conferred jurisdiction. Mr Barr obtained leave to appeal to this Court.[3]
[1]      Barr v Police [2009] NZAR 12 (French J).
[2]      Police v Barr [2009] NZCA 124 (Chambers, Robertson and Arnold JJ).
[3] [2009] NZSC 62.
[3]       At no stage during these proceedings did Mr Barr raise any question about the jurisdiction to order payment of the analyst’s fee. His counsel apparently thought that there was jurisdiction because that fee was the “blood test fee” which s 67 of the Land Transport Act 1998 renders those convicted on the basis of a blood test liable to pay as a fine. The amount of the fee (now $93) is fixed by a Gazette notice.[4]
[4]      Currently the Land Transport (Blood Test Fee) Notice 2001.
[4]       Prior to the hearing of this appeal, the Court issued a Minute noting that it was at least possible that the “blood test fee”, which is defined in s 2 as the fee prescribed under s 67, is the fee for the taking of the blood, not the analysis of it. A “blood test” is defined in s 2 as “the taking of a blood specimen for analysis”. These words would in their ordinary meaning not extend to the analysis of the specimen after it is taken. Accordingly, the “blood test fee” appeared to be the fee for the taking of the specimen, rather than its analysis. Counsel were asked to address this question at the hearing.
The “blood test” fee
[5]       At the hearing,…

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 Barr v Police

Details

AGLC: Barr v Police [2009] NZSC 109
Case: [2009] NZSC 109
Decision Date: 21 October 2009

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Leroy John Barr appealed against an order made by the District Court that he pay medical expenses of $102.60, following a conviction for driving with excess blood alcohol. The Police appealed the High Court's decision that there was no jurisdiction to order payment of the medical expenses. The central legal issues were whether the Costs in Criminal Cases Act 1967 conferred jurisdiction to order payment of medical expenses and the analyst's fee, and whether expenses incurred prior to the decision to prosecute could be considered costs under the Act. The Court of Appeal had previously found in favour of the Police, holding that the Act did confer such jurisdiction. The Supreme Court allowed the appeal, ruling that the medical expenses were not recoverable as costs under the Act, as they were incurred before the decision to prosecute. However, the Court found that there was jurisdiction to order payment of the analyst's fee, as it was incurred in carrying out a prosecution and had a sufficient nexus to the case. The Court substituted an order for the appellant to pay $93 towards the medical expenses, the amount prescribed under the Land Transport Act 1998.

The final orders were that the appeal be allowed, the order for payment of medical expenses of $102.60 be set aside, and an order be substituted for the appellant to pay $93 towards those expenses. The Court emphasised that the payments ordered by the District Court must now be made, subject to the slight reduction in the payment for medical expenses.

Orders