Blair v Police - [2012] NZHC 2649

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-249 [2012] NZHC 2649

BETWEEN CLINTON ATHOL BLAIR Appellant

ANDTHE POLICE Respondent

Hearing: 17 September 2012

Appearances: A Haskett for appellant
A Longdill for respondent

Judgment: 11 October 2012

JUDGMENT OF ALLAN J

This judgment was delivered by me on 11 October 2012 at ..4:00pm
pursuant to Rule 11.5 of the High Court Rules.

...................................
Registrar/Deputy Registrar

Solicitors:
A Haskett, Legal Defence Service Ltd, Auckland lawyer@legaldefence.co.nz
Crown Solicitor Auckland Anna.longdill@meredithconnell.co.nz

BLAIR V THE POLICE HC AK CRI 2012-404-249 [11 October 2012]

[1] The appellant was convicted in the Auckland District Court on 25 July 2012 on one charge of driving with excess breath alcohol, an offence against s 56(1) of the Land Transport Act 1998 (LTA). He was ordered to pay a fine of $650, together with Court costs of $132.89, and was disqualified from holding or obtaining a driver’s licence for a period of six months. He now appeals against conviction. There is no appeal against sentence.

[2] The grounds of appeal are:

(a) The result of the evidential breath test upon which the conviction was founded was inadmissible because the advice required to be given to the appellant under s 77(3)(a) of the LTA was not given without delay;

(b)The procedure adopted was unfair for the purposes of s 30 of the Evidence Act 2006, in that the result of the evidential breath test was not advised to the appellant until after he had taken legal advice.

Factual background

[3] This case is unlike many s 77(3)(a) appeals in that here there is agreement as to the precise sequence of events. Mr Haskett accepts that the following summary provided by counsel for the respondent is correct:

(a) Appellant stopped driving motor vehicle at 10.56 pm.

(b) Officer speaks to appellant, who admits alcohol consumption;

(c) Officer conducts breath screening test at 10.58 pm. Result is a fail general;

(d) Officer requires appellant to accompany him to Auckland Central Police Station for a breath test, blood test or both at 10.59 pm. Provides Bill of Rights advice;

(e) Travel to Auckland Central Police Station. Upon arrival, provided Bill of Rights advice again. Appellant telephones lawyer (Tracy Spencer) at 11.19 pm, and speaks to her for approximately three minutes, until 11.22 pm;

(f) Officer requires appellant to undergo evidential breath test without delay at 11.24 pm;

(g) Test takes two minutes to complete (refer timing on evidential breath test result card – part of exhibit 1);

(h) Test is completed at 11.26 pm. Officer advises appellant of positive result at 11.26 pm;

(i) Appellant cuts officer off and asks to speak to lawyer again. Officer facilitates this, and appellant speaks to Tracy Spencer for approximately five minutes;

(j) Officer reads Advice of Positive Evidential Breath Test part of form to appellant. Appellant signs the form to acknowledge having read it at 11.34 pm;

(k) Officer provides full Bill of Rights advice again to appellant at 11.35 pm. Appellant…

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 2649
Decision Date: 11 October 2012

CaseChat Overview and Summary

In Blair v Police, the appellant, Mr Blair, appealed against his conviction for driving with excess breath alcohol. The grounds of appeal were that the result of the evidential breath test upon which the conviction was founded was inadmissible because the advice required to be given under s 77(3)(a) of the Land Transport Act 1998 (LTA) was not given without delay, and that the procedure adopted was unfair for the purposes of s 30 of the Evidence Act 2006, in that the result of the evidential breath test was not advised to the appellant until after he had taken legal advice. The District Court found that there was a delay in advising Mr Blair of the actual reading of his positive breath test, but held that the delay did not result in any actual prejudice to Mr Blair.

The court held that the obligation of a police officer to advise a motorist that a test was positive "without delay" incorporated an obligation to advise the motorist of the evidential breath test reading. In this case, Mr Blair was told immediately that he had failed the evidential breath test. However, the police officer was unable to go on to provide details of the reading without delay because Mr Blair interrupted by demanding that he speak by telephone once more to the lawyer whom he had consulted minutes earlier. The second telephone call lasted about five minutes. The court held that the delay was not "necessary" and the constable was ignorant of his duty when exercising coercive powers. However, the court held that neither of these considerations, taken separately or together, constituted a reason to hold that there had been no reasonable compliance.

The court rejected the appellant's unfairness argument and held that the evidential breath test print-out was admissible. The appeal failed and was dismissed accordingly.

Orders