Bath v The Queen - [2010] NZCA 527

IN THE COURT OF APPEAL OF NEW ZEALAND
CA673/2010
[2010] NZCA 527
BETWEENDAVID JAMES BATH

Applicant

ANDTHE QUEEN

Respondent

Hearing:11 November 2010

Court:Stevens, Gendall and Cooper JJ
Counsel:W M Johnson for Applicant

N P Chisnall for Respondent

Judgment:18 November 2010 at 4.00 pm

JUDGMENT OF THE COURT

A            The application for extension of time is granted.
B            The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gendall J)
[1]        The applicant’s trial in the District Court at Wellington on an indictable charge of driving with excess blood alcohol on a third or subsequent occasion is scheduled for early 2011. He applies for an extension of time and leave to appeal against a pre-trial ruling of Judge Tuohy in the District Court at Wellington on 17 August 2010.[1] That decision ruled admissible as evidence at the trial a blood specimen medical certificate and the certificate of analysis of a blood sample taken from the applicant. The argument advanced by counsel is that the advice given to the applicant by the police officers as to his rights of access to a lawyer was not adequately or properly explained to him by the police officer. Accordingly, it is argued there was a breach of s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) so that the medical certificate and the certificate of analysis of the blood sample were inadmissible.
[1]      R v Bath DC Wellington CRI-2009-078-1365, 17 August 2010.
[2]        The notice of leave to appeal was filed six weeks out of time. The Court has heard the application for an extension of time in conjunction with the application for leave to appeal.
As to the application to extend time
[3]        A delay of six weeks after expiry of the period for appealing a pre-trial issue is undue and unacceptable. The appeal period is fixed at ten days, which is understandable because in all circumstances a trial is pending and in most casesimminent. The explanation advanced is that counsel was ill, and the applicant was absent on a commercial fishing boat and suffered a family crisis. This meant that contact between counsel and the applicant was impeded. Those explanations are somewhat tenuous and no affidavit evidence was advanced to support those contentions.
[4]        Trial is to take place early next year. It is hard to escape the view that the application for leave to appeal has arisen somewhat as a second thought. But consideration of the merits of a proposed appeal is always relevant in an application for extension of time. Naturally, if there is likely to be a miscarriage of justice because a ruling that evidence is admissible at trial is clearly wrong, then it is proper that time will be extended. So, for the purpose of this leave application we are prepared formally to extend time so as to deal with it on its merits.
Background facts
[5]        On two previous occasions the applicant had been convicted of excess blood or breath…

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 Bath v The Queen

Details

AGLC: Bath v The Queen [2010] NZCA 527
Case: [2010] NZCA 527
Decision Date: 18 November 2010

CaseChat Overview and Summary

David James Bath appeals against a ruling of Judge Tuohy of the District Court at Wellington, which ruled admissible as evidence at his trial, a blood specimen medical certificate and the certificate of analysis of a blood sample taken from him. Bath argues that the advice given to him by the police officers as to his rights of access to a lawyer was not adequately or properly explained to him, resulting in a breach of s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA), so that the medical certificate and the certificate of analysis of the blood sample were inadmissible. The notice of leave to appeal was filed six weeks out of time. The Court has heard the application for an extension of time in conjunction with the application for leave to appeal.

The Court granted an extension of time for the purpose of dealing with the application for leave to appeal on its merits, but declined leave to appeal. The Court found that the advice given to Bath at the roadside, and then again at the police station, was adequate and intelligible. The Court found that there was no evidence of any confusion or misunderstanding by Bath. The Court found that the advice given to Bath was of the right to consult and instruct a lawyer in private "free of cost." The Court found that it was a matter of fact based upon the evidence heard and was a finding open to the Judge on that evidence. The Court found that there was no evidence before the Judge of any confusion or misunderstanding by Bath. The Court found that it was open to the Judge on the evidence to find as he did that no confusion existed and that Bath was properly advised of his rights at the police station. The Court found that as a consequence the breath and blood testing procedures at the police station which followed could not be impugned. The Court found that the evidence was admissible. The Court found that the substance of the appeal had no merit.

Orders