Booker v The Queen - [2019] NZCA 149

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA671/2018
[2019] NZCA 149

BETWEEN	TERRY JAMES BOOKER Appellant
AND	THE QUEEN Respondent

Hearing:	3 April 2019
Court:	Gilbert, Wylie and Thomas JJ
Counsel:	Appellant in Person R M A McCoubrey and H G Clark for Respondent
Judgment:	9 May 2019 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

Introduction

After consuming alcohol, Terry Booker drove his car and collided with another motor vehicle. He was subsequently assaulted when he was sitting in his car parked on the roadside. He collided with other vehicles when he attempted to drive away. He was taken to hospital where a medical officer informed him he was required to provide a blood specimen. He refused.
A jury found Mr Booker guilty of one charge of refusing to permit a medical officer to take a blood specimen, he having been convicted at least twice previously of a related qualifying offence.[1] Prior to trial, he had pleaded guilty to careless driving.
[1]Land Transport Act 1998, ss 60(1)(c), 60(3) and 73.
Mr Booker appeals his conviction.

Grounds of appeal

The primary issue identified in the notice of appeal was whether the trial Judge correctly answered a jury question as to whether a person must be conscious in order to be guilty of the offence.
Mr Booker represented himself on appeal and in his oral submissions he identified two further issues:
(a)In the circumstances were the police entitled to follow him to hospital and seek a blood specimen?
(b)Did his treatment infringe his right to dignity? We treat this as a submission that Mr Booker’s rights, pursuant to the New Zealand Bill of Rights Act 1990, were infringed. In particular his rights to refuse to undergo medical treatment and not to be subject to medical or scientific experimentation.[2] The right not to be subjected to degrading treatment is also potentially engaged.[3]

The trial

[2]New Zealand Bill of Rights Act 1990, ss 11 and 10.

[3]Section 9.

The essential issue at trial was whether Mr Booker refused to permit a medical officer, Sylvia Hobson, to take a blood specimen as required by s 73 of the Land Transport Act 1998 (the Act).
The background facts were not in dispute. On the evening of Friday 27 October 2017 at around 8.00 pm, Mr Booker was driving his motor vehicle on the forecourt of a petrol station in Wellsford.[4] He reversed his car at low speed into a Mitsubishi ute which was also on the forecourt. Following a conversation with the driver of the ute, Mr Booker drove a short distance and parked on the side of the road. Mr Booker was then approached by two men and repeatedly punched to the head while still sitting in the driver’s seat. Mr Booker attempted to drive away but collided with other vehicles.
[4]These background facts were contained in a statement of agreed facts provided…

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 Booker v The Queen

Details

AGLC: Booker v The Queen [2019] NZCA 149
Case: [2019] NZCA 149
Decision Date: 9 May 2019 at 3 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Terry James Booker, the appellant, sought to appeal his conviction for refusing to permit a medical officer to take a blood specimen after being involved in a motor vehicle accident. The case involved Booker's collision with another vehicle, subsequent assault, and his refusal to provide a blood sample when taken to the hospital. The jury found Booker guilty, and he appealed the conviction on the basis that the trial judge did not correctly answer the jury's question regarding the necessity of consciousness for guilt, and that the police did not have the right to follow him to the hospital to obtain the sample. Furthermore, Booker argued that his treatment infringed his rights under the New Zealand Bill of Rights Act 1990.

The court considered the issue of whether the jury was correctly directed on the requirement of consciousness for the offence, and found that the jury was aware they had to be sure Booker was conscious at the time of the refusal. Additionally, the court found that the qualifying requirements under s 73 of the Land Transport Act 1998 were met. The court also rejected Booker's argument that his rights under the New Zealand Bill of Rights Act 1990 were infringed, stating that the specific provisions of the Act prevail over the more general rights in the Bill of Rights.

Ultimately, the Court of Appeal dismissed the appeal against conviction, finding that there was no miscarriage of justice. The court concluded that Booker was properly required to provide a blood specimen pursuant to s 73 of the Land Transport Act 1998, and that his rights under the New Zealand Bill of Rights Act 1990 did not apply in this instance.

Orders