Brett v Police - [2016] NZHC 201

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2015-419-000041 [2016] NZHC 201

RUSSELL PATRICK BRETT

v

NEW ZEALAND POLICE

Hearing: 10 February 2016

Appearances:

A Haskett for Appellant
T A Needham for Respondent

Judgment:

17 February 2016

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 17 February 2016 at 4.30pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date:……………………………….

Solicitors/counsel:
A Haskett, Auckland
Crown Solicitors, Hamilton

BRETT v NEW ZEALAND POLICE [2016] NZHC 201 [17 February 2016]

[1] On 3 July 2015, following a Judge alone trial held on 3 June 2015, the appellant, Mr Brett, was found guilty by Collin DCJ in the District Court at Hamilton of driving with excess breath alcohol. On 20 October 2015, Mr Brett was sentenced to six months’ disqualification from driving and fined $750. He was also ordered to pay $130 in Court costs, $80 for medical fees and $109.25 for the analysis fee.

[2] Mr Brett appeals his conviction. He submits that a miscarriage of justice has occurred because:

(a) the prosecution did not offer sufficient admissible evidence to prove that he made a valid election to undertake a blood test;

(b)even if the blood test was requested by him, the prosecution did not prove that any such request was made after he had been given the advice required by s 77(3) of the Land Transport Act 1998; and

(c) Collin DCJ did not give adequate reasons for rejecting his evidence and accepting the evidence advanced by the informant.

Relevant facts

[3] The prosecution called one witness, a Constable Daltrey. The prosecution case can be summarised as follows:

(a) On 17 October 2014 Constable Daltrey was patrolling on State Highway 3. He observed a motor vehicle travelling away from him on Te Kawa Road. The vehicle was swerving across both lanes. The constable activated his flashing lights and siren, and the vehicle pulled over. He then approached the vehicle and found Mr Brett in the driver’s seat, drinking water from a large bottle. The constable observed a half empty box of beers in the vehicle and a number of empty bottles. Mr Brett was unsteady on his feet when he got out of his vehicle. Mr Brett was aggressive from the outset and he accused

the constable of stealing his water bottle. Mr Brett was required to

undergo a breath screening test. The result was “over 400”.

(b)Constable Daltrey required Mr Brett to accompany him to the Te Awamutu police station for an evidential breath test. At the police station, Mr Brett was given his rights as required by the New Zealand Bill of Rights Act 1990 and he was given the opportunity to and did speak to a lawyer. He was then directed to the evidential breath test room. Mr Brett continued to be argumentative. The constable asked another officer to remain in the room with him while he conducted the evidential breath test procedure, but the officer could only stay for a…

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 Brett v Police

Details

AGLC: Brett v Police [2016] NZHC 201
Case: [2016] NZHC 201
Decision Date: 17 February 2016

CaseChat Overview and Summary

Brett v Police was an appeal against a conviction for driving with excess breath alcohol. Brett was found guilty in the District Court. The appeal was heard in the High Court at Hamilton. Brett argued that a miscarriage of justice had occurred because: (a) the prosecution did not offer sufficient admissible evidence to prove that he made a valid election to undertake a blood test; (b) even if the blood test was requested by him, the prosecution did not prove that any such request was made after he had been given the advice required by s 77(3) of the Land Transport Act 1998; and (c) Collin DCJ did not give adequate reasons for rejecting his evidence and accepting the evidence advanced by the informant. The appeal was dismissed. The court found that there was sufficient evidence to establish that Brett had elected to give a blood test. It also found that the non-compliance with s 77 of the Act did not create a risk that Brett had suffered an injustice or unfairness.

Orders