Legal Research
Cases
Birchler v Police

Birchler v Police

Case [2010] NZSC 109 30 August 2010

Admissibility of Evidence

Statutory Interpretation

Criminal Law

No judgment structure available for this case.

Type to search within this case.

For a Court ready (fee required) version please follow this link

IN THE SUPREME COURT OF NEW ZEALAND
SC 116/2009
[2010] NZSC 109
MATTHEW JOHN BIRCHLER
v
NEW ZEALAND POLICE
Hearing:11 August 2010

Court:Elias CJ, Blanchard, Tipping, McGrath and William Young JJ
Counsel:R M Lithgow QC and L A Scott for Appellant
J C Pike and A C Walker for New Zealand Police

Judgment:11 August 2010

Reasons: 30 August 2010

JUDGMENT OF THE COURT

The appeal is allowed and the order made by the High Court remitting the case for further consideration in the District Court at Wellington is set aside.

REASONS
(Given by Blanchard J)
Introduction
[1]       The District Court at Wellington dismissed a charge against Mr Birchler of driving with excess blood alcohol. The police appealed by way of case stated under s 107 of the Summary Proceedings Act 1957. The High Court allowed the appeal and remitted the case for further consideration in the District Court. This Court gave leave to Mr Birchler to appeal directly against the High Court’s decision. Mr Pike, appearing for the police, signalled in his submissions that the police were no longer seeking to have the matter sent back to the District Court. At the end of the hearing we allowed Mr Birchler’s appeal and quashed the order of the High Court. We said that we would give our reasons later. We now do so.
[2]       A vehicle driven by Mr Birchler had an accident in Tinakori Road in central Wellington on 24 September 2007. He was convicted of careless driving in respect of that incident. But he also faced a charge of driving with excess blood alcohol under s 56 of the Land Transport Act 1998 and the problems which have emerged relate to that prosecution, which arose from the same event.
The Land Transport Act provisions
[3]       Before describing what occurred it is convenient to outline the relevant provisions in Part 6 of the Land Transport Act. The Act prescribes a number of steps which normally must be taken before an evidential blood test is given to a driver. They begin with a breath screening test, which is almost always administered at the roadside. Under s 68 an “enforcement officer”, including a sworn member of the police, may require, inter alia, the driver of a vehicle involved in an accident to undergo a breath screening test “without delay”.[1] In four circumstances s 69 authorises such an officer to require the driver to accompany the officer to a place where it is likely that the driver can undergo an evidential breath test or a blood test (or both). The first and commonest of these circumstances is where the driver has undergone a breath screening test under s 68 and it appears to the officer that the test indicates that the proportion of alcohol in the driver’s breath exceeds 400

micrograms of alcohol per litre of breath.[2] A requirement to accompany can also be made where the driver could be required to…

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 Birchler v Police

Details

AGLC: Birchler v Police [2010] NZSC 109
Case: [2010] NZSC 109
Decision Date: 30 August 2010

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Matthew John Birchler appealed against a decision of the High Court which had remitted the case for further consideration in the District Court. The central issue in this appeal was whether the High Court had correctly decided that the District Court should have considered the admissibility of the blood test evidence under s 30 of the Evidence Act 2006. The core legal questions revolved around the interpretation of s 108 of the Summary Proceedings Act 1957 and the applicability of s 30 of the Evidence Act to the admissibility of evidence obtained following an unlawful breath screening test. The Supreme Court held that s 108 did not bar the police appeal because the real issue was whether the preliminary step of effecting a lawful breath screening test in terms of s 69(1) of the Land Transport Act is an element of the offence of driving with excess blood alcohol or whether the lawfulness of the breath screening test is an ancillary procedural safeguard but not an element of the offence. The Court concluded that the police had not strictly complied with s 69, but there was no evidence of bad faith, and thus the blood test evidence should be considered under s 64(2) of the Land Transport Act, which allows for reasonable compliance. The Court found that the case stated had been improperly framed and that s 30 of the Evidence Act was not applicable in this context. The appeal was allowed, and the order of the High Court was set aside.

The Supreme Court’s decision clarified that the non-compliance with s 69 in the statutory process for obtaining an evidential test should be distinguished from the admissibility of evidence under s 30 of the Evidence Act. The Court also addressed the erroneous dictum from the Court of Appeal in Gallichan that a challenge to the admissibility of evidence is made too late if raised after the prosecution case has closed, stating that the judge is entitled and obliged to determine a question of admissibility at any stage, if necessary by hearing further evidence.

Orders