Barrington-Nash v Police

[2012] NZHC 868

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-395 [2012] NZHC 868

BETWEEN  WARWICK WILLIAM BARRINGTON- NASH

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 April 2012

Appearances: K K Harding for Appellant

S C Waalkens for Crown

Judgment:      30 April 2012

(ORAL) JUDGMENT OF PETERS J

Solicitors:

Meredith Connell, Crown Solicitors, Auckland: [email protected]

Counsel:

K K Harding, Barrister, Auckland:  [email protected]

BARRINGTON-NASH V POLICE HC AK CRI 2011-404-395 [30 April 2012]

[1]      On 5 October 2011, in the District Court at North Shore the Appellant was convicted on a charge of refusing to permit a medical officer to take a blood specimen.[1]

[1] Land Transport Act 1998, s 60(1)(c).

[2]      That conviction followed a defended hearing in relation to three charges arising out of an incident in late 2010.  The Court was not satisfied that two of the three charges were proved but was satisfied that the Appellant had refused to permit a blood specimen to be taken.

[3]      The essence of the Appellant’s defence on the charge was that he did not so much refuse as seek to speak first to a lawyer and that he declined to give a sample until he had done so.  The Judge determined, however, that in the circumstances of this particular case, the Appellant was not entitled to speak to a legal advisor before permitting a specimen to be taken.   The sample was to be taken at a hospital, a doctor had certified that there were no medical reasons why the Appellant could not give a specimen and the Appellant was required to comply with the request to permit a specimen to be taken.

[4]      The  Judge  convicted  the  Appellant,  imposed  a  fine  of  $500.00  and disqualified the Appellant from driving for six months.  Because it is significant to what follows, I note that the Appellant’s counsel at the time, and the Appellant has since instructed other counsel, asked the Judge to impose the minimum period of disqualification and no more than that. That is what the Judge did.

[5]      Without first taking legal advice, the Appellant completed his own Notice of Appeal.  That notice was confined to an appeal against conviction on the ground that the Judge had erred in finding that the charge was proved.   The appeal against conviction  on  that  ground  is  now  abandoned  and  the  Appellant  now  seeks  a discharge without conviction pursuant to s 106 Sentencing Act 2002 and/or an order pursuant to s 81 of the Land Transport Act 1998 (“the Act”) on the grounds that there are special reasons relating to the offence which make it appropriate to refrain from

imposing the minimum period of disqualification.

[6]      The Appellant requires an extension of time to the extent he appeals against sentence pursuant to s 81 of the Act.  The Crown opposes any extension.  I do not propose to grant an extension because, aside from anything else, I am not satisfied that there is any merit in this appeal.

[7]      First, the Appellant did not seek a discharge without conviction from the District Court Judge.  Nor, as I have said, did counsel for the Appellant ask the Judge to  consider  refraining  from  imposing  the  minimum  period  of  disqualification pursuant to s 81 of the Act.  There is no affidavit from counsel who appeared for the Appellant at the time, explaining why these matters were not advanced.   The explanation  now  given,  from  the  bar,  was  that  the Appellant  did  not  wish  to embarrass his (former) lawyer by raising these matters with him.  The consequence, however, is that there is no satisfactory explanation as to why these matters were not advanced to the District Court Judge.   In itself that is sufficient to dispose of this matter.

[8]      In any event, I am not satisfied that this would be a case for a discharge under s 106 or for refraining from the imposition of the minimum period under s 81 of the Act.

[9]      Counsel for the Appellant has taken me to relevant parts of the notes of evidence.  It appears from those notes that the Appellant volunteered that he would not be permitting a specimen to be taken, even before he were asked to do so. Counsel explains this, again from the bar, as being the natural reaction of someone who has been in accident to which the Police have been called.   I am satisfied, however,  that  the Appellant’s  mind  was  made  up  that  he  was  not  going  to  be permitting a specimen to be taken, even though it appears to have been made clear to him that he was not entitled to insist on speaking to a lawyer in advance.

[10]    Also any application under s 106 of the Sentencing Act 2002 requires consideration of the matters set out in s 107 of that Act.

[11]     In support of his appeal the Appellant has sworn an affidavit to the effect that he is concerned the conviction will have the effect of increasing insurance premiums

payable by him or his business, and particularly on a fleet of vehicles used for business purposes; that the conviction may restrict his right to move freely in and out of other countries which he visits for business and personal reasons, and that the conviction may have adverse business implications in the field in which he and his wife operate.

[12]     These  concerns  are,  however,  purely  speculative.    There  is  no  evidence before me that this conviction would have those consequences for the Appellant.  For instance evidence from an insurance broker or a travel agent deposing as to the consequences the Appellant anticipates would be required to give some substance to the concerns expressed by the Appellant.   Applications for discharge without conviction based on such reasons should be supported by independent evidence.

[13]     As both counsel accept, refusing to permit the taking of a blood specimen is a serious matter.   I am not satisfied that the matters to which the Appellant refers would be out of proportion to the gravity of the offence.

[14]     As for s 81 of the Act, I am not satisfied that special reasons related to the offence existed, so as to allow the Court to consider refraining from imposing the minimum period of disqualification.  As I have already said, my reading of the notes of evidence is that the Appellant had resolved not to permit a specimen to be taken, and he maintained that position even when it was made clear to him that he could not properly refuse.

[15]     Accordingly, I decline to grant leave to appeal against sentence out of time.

..................................................................

M Peters J