Bool v Police - [2013] NZHC 2548

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000218 [2013] NZHC 2548

BETWEEN
JAMES CLIFFORD BOOL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 September 2013
Counsel:	N M Silich for Appellant M J Hammer for Crown
Judgment:	30 September 2013

JUDGMENT OF COLLINS J

Introduction

[1] Mr Bool was convicted by Judge Ryan of driving with 638 micrograms of alcohol per litre of breath and sentenced to 120 hours community work. He appeals both his conviction and sentence.

[2] The questions I have to consider are:

(1)Whether Mr Bool was driving the vehicle in question out of necessity; and if not,

(2)Was there a special reason for not disqualifying Mr Bool from driving for a fixed period; and if so,

(3)Could a sentence of community work be imposed; and if so,

BOOL v NEW ZEALAND POLICE [2013] NZHC 2548 [30 September 2013]

(4)Was the sentence of 120 hours’ community work clearly excessive or inappropriate.1

Context

[3] At 4.30 am on 5 July 2012 Mr Bool waved down a police vehicle on the Great North Road. Mr Bool’s vehicle was blocking traffic and he told the police that he had run out of petrol after driving from Massey to Henderson. Mr Bool explained that he had been assaulted and that he was trying to get medical help.

[4] Mr Bool explained that he, a work friend and another person were at an address in West Auckland. They then went into Auckland city to watch a rugby league match. Mr Bool became involved in a brawl outside the pub they were at. Mr Bool sustained an injury but no medical assistance was sought or given. Mr Bool was placed in a taxi by his associates but never saw them again.

[5] Mr Bool said that he lapsed in and out of consciousness in the taxi and did not give the driver any directions but was dropped off at an address where his van was. Mr Bool said that he knocked on the door of the address but no one answered. He then drove his van to a medical centre but it was closed. He then tried to go to another medical centre. The police took Mr Bool to hospital where he reported symptoms of a headache, was administered panadol and kept under observation for two to three hours.

[6] During the course of her judgment Judge Ryan pointed out Mr Bool’s account of events was not corroborated by:

(1)either of Mr Bool’s associates who he appears not to have been able to locate to give evidence;

(2)the taxi driver who was not called as a witness; and

(3)medical evidence of Mr Bool’s previous head injuries.

[7] While outlining the evidence Judge Ryan also noted:

(1)that despite going into the central city to watch a major rugby league match, Mr Bool could not remember who had won the game; and

(2)that an unnamed taxi driver from an unnamed taxi company drove Mr Bool all the way to West Auckland when 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.

Continue reading Bool v Police

Details

AGLC: Bool v Police [2013] NZHC 2548
Case: [2013] NZHC 2548
Decision Date: 30 September 2013

CaseChat Overview and Summary

James Clifford Bool appeals against his conviction and sentence for driving with a high level of alcohol in his breath. He was convicted by Judge Ryan and sentenced to 120 hours of community work. The appeal raises several questions including whether Mr Bool was driving out of necessity, if there was a special reason for not disqualifying him from driving, if a sentence of community work could be imposed, and whether the sentence of 120 hours was excessive. The High Court found that Mr Bool was not driving out of necessity. However, the Court did find there was a special reason for not disqualifying Mr Bool. The Court found the sentence of 120 hours' community work was clearly excessive and replaced it with a fine of $800.

The Court considered the defence of necessity, which requires a belief of imminent peril of death or serious injury, a reasonable belief, a response to that risk, and proportionality. The Court found that Mr Bool did not satisfy these requirements as he could have sought alternative means to get medical attention. The Court also considered the sentence imposed, finding that a fine was more appropriate given the special reason for not disqualifying Mr Bool. The Court concluded that a sentence of community work was excessive and replaced it with a fine of $800.

Orders