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: simon.waalkens@meredithconnell.co.nz

Counsel:
K K Harding, Barrister, Auckland: info@karenharding.co.nz

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…

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: [2012] NZHC 868
Decision Date: 30 April 2012

CaseChat Overview and Summary

Barrington-Nash, the appellant, was convicted in the District Court at North Shore for refusing to permit a medical officer to take a blood specimen, a charge arising from an incident in late 2010. The appellant's defence was that he sought to speak to a lawyer before providing the sample. The District Court Judge, however, found that the appellant was not entitled to consult with a legal advisor before permitting a specimen to be taken and convicted him accordingly. The judge imposed a fine of $500 and disqualified the appellant from driving for six months, the minimum period allowed by law. The appellant appealed against the conviction but later abandoned this appeal and sought a discharge without conviction or an order under the Land Transport Act 1998 to refrain from imposing the minimum period of disqualification.

The legal issues before the court were whether there were special reasons that warranted a discharge without conviction under section 106 of the Sentencing Act 2002 and whether special reasons existed that would allow the court to refrain from imposing the minimum period of disqualification under section 81 of the Land Transport Act 1998. The court considered the appellant's concerns about the potential impact of the conviction on his insurance premiums, travel rights, and business operations, but found these concerns speculative and unsupported by evidence. The court also found that the appellant had resolved not to permit the specimen to be taken, even when informed of his legal rights.

The court held that the appellant had not provided a satisfactory explanation as to why the matters of discharge without conviction and refraining from the imposition of the minimum period of disqualification were not raised in the District Court. Furthermore, the court was not satisfied that the appellant's concerns were out of proportion to the gravity of the offence. Consequently, the court declined to grant leave to appeal against sentence out of time and dismissed the appellant's application for a discharge without conviction and for an order under section 81 of the Land Transport Act 1998.

The final orders of the court were that the appeal against sentence was dismissed, and the appellant was not granted leave to appeal out of time. The court also declined to grant a discharge without conviction or an order to refrain from imposing the minimum period of disqualification.

Orders