Blair v Police - [2018] NZHC 664

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000448

[2018] NZHC 664

BETWEEN
PAUL ANTHONY BLAIR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 March 2018

Appearances:

Appellant in person

M Mortimer for the Respondent

Judgment:

12 April 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 12 April 2018 at 3:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

BLAIR v POLICE [2018] NZHC 664 [12 April 2018]

Introduction

[1] Paul Anthony Blair was charged with driving a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath in that it was 761 micrograms of alcohol per litre of breath. Mr Blair defended himself at trial. Following the defended hearing, the charge was found proven by Judge P I Treston. Mr Blair was then convicted and fined $750 with Court costs of
$130. He was also disqualified from holding or obtaining a driver’s licence for one year and one day. He now appeals against conviction and sentence. He is again unrepresented by legal counsel.

Factual background

[2] Mr Blair is an educator and lives in Rotorua. At the time of the offence, he travelled to Auckland on Thursdays and Fridays to work as a volunteer for Auckland Action Against Poverty (AAAP). AAAP occupies ground floor premises on the corner of Galway Street and Church Street, Onehunga. On the evening of 28 April 2016 he and his son were invited to attend a farewell drinks evening for a colleague at Arthurs Bar about half a kilometre away. Mr Blair and his son were there about five hours. Mr Blair said he had four or five 350 ml bottles of beer together with some finger food and hot chips.

[3] Mr Blair and his son were to spend the night on fold-out beds at the AAAP premises. At about 9.00 pm they drove down Onehunga Mall and stopped at a Chinese takeaway and had dumplings and soya sauce. Mr Blair suffers from mouth ulcers and wears an upper partial dental plate. He says the soya sauce caused his mouth ulcers to sting so he took out his dental plate and liberally coated the plate with Medijel, a medicine for mouth ulcers, before inserting it back into his mouth. Mr Blair and his son then drove down Galway Street back to the AAAP premises at about 9.15 pm. It was then that a police officer noticed Mr Blair’s car being driven across the road to the opposite side and being parked facing the wrong direction on Galway Street. The police officer activated the normal drink driving procedures when she smelt alcohol on Mr Blair’s breath. An evidential breath test taken later, at 10.00 pm, resulted in a reading of 761 micrograms of alcohol per litre of breath, almost twice the legal limit above which a criminal offence is committed.

Grounds of appeal

[4] Notwithstanding two…

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 664
Decision Date: 12 April 2018

CaseChat Overview and Summary

In the case of Blair v Police, Paul Anthony Blair appeals against his conviction and sentence for driving a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath. Blair asserts that there was a mistake in the operation of the evidential breath test machine due to the presence of alcohol in a medication he had taken for mouth ulcers. The appeal focuses on the admissibility of evidence from an expert on breath testing devices and a letter from Blair's doctor, as well as the Judge's comments on Blair's credibility and the admission of his previous drink driving convictions. The High Court found that the evidence sought to be presented by Blair would not have altered the outcome of the trial due to the statutory presumption of correctness of the breath test results. Consequently, the appeal against both conviction and sentence was dismissed.

The primary legal issue in this case was whether the exclusion of certain evidence led to a miscarriage of justice. Specifically, the court had to determine if the exclusion of expert evidence on the reliability of breath testing devices, a letter from Blair's doctor regarding the side effects of tramadol, and the admission of Blair's previous drink driving convictions constituted errors that resulted in a miscarriage of justice. The court held that even if this evidence had been admitted, it would not have changed the outcome of the trial because the statutory presumption of correctness of the breath test results precluded any challenge to the test's accuracy. Therefore, the appeal was dismissed, and Blair's conviction and sentence were upheld.

Orders