Brannigan v Police - [2013] NZHC 1926

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000053 [2013] NZHC 1926

BETWEEN STUART WILLIAM BRANNIGAN Plaintiff

ANDNEW ZEALAND POLICE Defendant

Hearing: 25 July 2013

Appearances: J Angland for Appellant
MAV Raj for Respondent

Judgment: 1 August 2013

JUDGMENT OF D GENDALL J

Introduction

[1] This is an appeal against conviction.

[2] The appellant was convicted on one charge of driving with excess breath alcohol in a reserved decision of His Honour Judge P Moran in the District Court dated 22 April 2013. A sentence of $950 plus court costs, disqualification for three months and an alcohol interlink licence disqualification pursuant to s 65A(2) of the Land Transport Act 1998 was imposed. The appellant had two previous convictions for driving with excess breath alcohol.

[3] The appellant now appeals his conviction on the basis that an error of law occurred. This error of law is said to be that the District Court Judge did not correctly apply s 64(2) of the Land Transport Act 1998 in deeming that there was reasonable compliance by the police constable in allowing the appellant less than
10 minutes to decide whether he wished to undergo a blood test. The appeal is also

based on the suggestion that the District Court Judge made a material error of fact in

BRANNIGAN v NEW ZEALAND POLICE [2013] NZHC 1926 [1 August 2013]

finding that, although the minimum 10 minute period was not allowed, the police constable’s watch did not record seconds (when in fact it did) and, therefore, following the decision in Brown v Police, the charge should have been dismissed.1

[4] On this, before me, the respondent accepted that there was an error of fact in the District Court Judge holding that the police constable’s watch did not record seconds when actually it did. The respondent submits that notwithstanding this, the issue before me must be determined under the reasonable compliance provisions of s
64(2), and the Judge’s decision here should be upheld, given the legislative intent of this provision.

Background facts

[5] This incident arose when the appellant crashed his vehicle on Leeston Road on the evening of Sunday 4 November 2012. No one was injured in this crash. The police constable in question was directed to the vehicle crash and, it appears, was informed by other emergency services that the appellant had admitted to drinking all day. The constable spoke with the appellant driver and noticed he was affected by alcohol. The appellant failed a breath screening test.

[6] The appellant then accompanied the officer to the Rolleston Police Station for an evidential breath test.

[7] The evidential breath test recorded an alcohol reading of 643 micrograms of alcohol per litre of breath. The legal limit is 400. After being told of the result of the evidential breath test the appellant was told that, if he wished to undergo a blood test, he must request one within 10 minutes. At the end of what was said to be the
10 minute period…

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: [2013] NZHC 1926
Decision Date: 1 August 2013

CaseChat Overview and Summary

Stuart William Brannigan appeals against his conviction for driving with excess breath alcohol, challenging the District Court's ruling that he was given a full uninterrupted 10-minute period to decide on a blood test. The core issue is whether the District Court correctly applied section 64(2) of the Land Transport Act 1998, which permits reasonable compliance rather than strict adherence to statutory requirements. The District Court found that despite a minor discrepancy in the time given to the appellant, there was reasonable compliance with the Act. The respondent argues that the District Court's decision should be upheld under the reasonable compliance provisions of section 64(2).

The court considered the legislative intent behind the 10-minute period, which is to provide the driver adequate time to decide on a blood test without undue pressure. The court examined previous cases, including Brown v Police, where a similar issue arose but was deemed significant due to the officer's deliberate non-compliance. In contrast, the current case involved an inadvertent oversight by the officer, who usually provided between 11 and 13 minutes for the decision. The court found that the minor deviation from the usual practice did not prejudice the appellant, given the substantial evidence of his breath alcohol level. The court concluded that the non-compliance did not affect the correctness of the result and did not risk injustice or unfairness to the appellant. Therefore, the appeal is dismissed as the District Court's finding of reasonable compliance under section 64(2) was justified.

Orders