Blair v Police - [2018] NZHC 1251

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-419-000013

[2018] NZHC 1251

BETWEEN
RYAN CHARLES GORDON BLAIR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 May 2018

Appearances:

Appellant in person

A A R Pell for Respondent

Judgment:

31 May 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 31 May 2018 at 11am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Hamilton

BLAIR v POLICE [2018] NZHC 1251 [31 May 2018]

Introduction

[1] Ryan Blair was charged with an infringement offence under the Land Transport Act 1998, namely driving with a breath alcohol level exceeding 250 micrograms but not exceeding 400 micrograms.1 On 19 March 2018, Judge Connell in the Morrinsville District Court found the charge proved following a trial without jury.2 Mr Blair was ordered to pay an infringement fee of $200 and court costs.

[2] Mr Blair now appeals against his conviction on the grounds that the way in which the evidence was obtained was in contravention of the New Zealand Bill of Rights Act 1990 and the Evidence Act 2006. He represented himself in the District Court and is also self-represented on appeal.

The trial in the District Court

[3] The prosecution called one witness against Mr Blair, Constable Knighton. His evidence primarily consisted of his written brief of evidence being read aloud and although it was not recorded on the formal transcript of the evidence, a copy of the brief of evidence was provided for my reference at the hearing of this appeal.

[4] Constable Knighton said that on Saturday 19 August 2017 he was conducting a checkpoint on Allen Street, Morrinsville. At around 6.45pm he stopped a Mazda motor car being driven by Mr Blair having noticed his car had a faulty headlight. He then noticed that Mr Blair’s breath smelled of alcohol and he had bloodshot and glazed eyes. Mr Blair was co-operative and admitted to having consumed alcohol in the form of home-brew spirits. When Constable Knighton produced a handheld breath test device to conduct a passive breath test, Mr Blair commented by saying that he had heard that the presence of a pizza in the car could cause incorrect readings on the handheld device. As Mr Blair had admitted having recently consumed alcohol, Constable Knighton required him to undergo a breath screening test using a Drager 7510NZ handheld device. Mr Blair cooperated and the breath screening test produced a reading indicating a level of over 250 micrograms of alcohol per litre of breath. Having shown Mr Blair the result of the breath screening test, Constable Knighton

1 Section 56(1A).
2 Police v Blair [2018] NZDC 6094.

advised Mr Blair that he required him to accompany him to the Morrinsville Police Station or any other such place for the purpose of an evidential breath test, blood test or both. He said that Mr Blair agreed to accompany him, at which point he…

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: [2018] NZHC 1251
Decision Date: 31 May 2018

CaseChat Overview and Summary

The appellant, Ryan Blair, appealed his conviction for an infringement offence under the Land Transport Act 1998, specifically for driving with a breath alcohol level exceeding 250 micrograms but not exceeding 400 micrograms. The conviction was upheld by Judge Connell in the Morrinsville District Court, which Mr Blair now sought to overturn on the basis that the evidence obtained was in violation of the New Zealand Bill of Rights Act 1990 and the Evidence Act 2006.

The court was tasked with determining whether the evidence obtained by the police, which led to Mr Blair's conviction, was procured in a manner that violated his rights under the New Zealand Bill of Rights Act and the Evidence Act. Specifically, the court had to consider if Mr Blair's right to fairness, due process, and the prohibition against compelled confessions were breached by not being informed that he would lose the right to elect a blood test if his breath alcohol level was between 250 and 400 micrograms.

The High Court found that Mr Blair's rights were not breached. The court noted that the procedure followed by Constable Knighton was in line with the statutory requirements. Mr Blair was informed of his rights and the consequences of failing to undergo an evidential breath test, which included the requirement to permit a blood specimen to be taken. The court further held that the plain language of the statute, particularly section 70A(2) of the Land Transport Act, which excludes the right to elect a blood test for individuals with a breath alcohol level between 250 and 400 micrograms, left no room for interpretation or the imposition of additional obligations on the police to inform individuals of this limitation prior to testing. The court also dismissed Mr Blair's arguments regarding the cost of a blood test and its alleged oppressive nature, stating that the cost did not constitute oppression as defined by the Evidence Act and that Mr Blair had no legal right to a blood test in the circumstances.

The court concluded that no miscarriage of justice occurred, and Mr Blair's appeal was dismissed.

Final orders: Mr Blair's appeal is dismissed.

Orders