Brown v Police - [2012] NZHC 1192

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-70 [2012] NZHC 1192

BETWEEN GRANT KIMBER BROWN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 2 May 2012

Appearances: M Harte for Appellant
R E Savage for Crown

Judgment: 30 May 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 30 May 2012 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors:
Meredith Connell, Crown Solicitors, Auckland: rebecca.savage@meredithconnell.co.nz

Counsel:
M Harte, Barrister, Auckland: harte@orcon.net.nz

BROWN V POLICE HC AK CRI-2012-404-70 [30 May 2012]

Introduction

[1] The Appellant appeals against his conviction in the District Court at Auckland on 5 March 2012 on a charge brought pursuant to s 56(1) of the Land Transport Act 1998 (“the Act”), namely that he drove a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath.[1]

[1] Police v Brown DC Auckland CRI-2011-004-012381, 5 March 2012.

[2] The issue that arises on the appeal concerns s 64(2) of the Act, namely whether there was reasonable compliance with particular provisions of the Act. The case in the District Court and on appeal proceeds on the basis that, having returned a positive evidential breath test, the Appellant was given less than 10 minutes in which to elect to take a blood test. For reasons set out below, it was and is to be assumed that the Appellant was given 9 minutes and 1 second to make his election. The District Court Judge determined that there had been reasonable compliance with the provisions of the Act and convicted the Appellant accordingly.

Facts

[3] The Appellant was stopped by a Police Officer in Parnell, Auckland in the early hours of 2 July 2011. The Appellant failed a breath screening test and accompanied the Officer to a nearby Police Station. There the Appellant completed an evidential breath test and returned a reading of 780 micrograms of alcohol per litre of breath, substantially in excess of the maximum permitted level of 400 micrograms.

[4] The effect of the positive result was to give the Appellant the right to elect to have a blood test to assess the proportion of alcohol in his blood. The Appellant was required to communicate that election within 10 minutes of being advised of certain matters. In the absence of the Appellant being given 10 minutes in which to make
that election, the positive result of the evidential breath test would be inadmissible.[2]

[2] Land Transport Act 1998, ss 70A(1) and 77(3).

[5] The purpose of the 10 minute period is to allow the person concerned a period in which to consider whether or not to take the blood test. It is open to the person to take legal advice if they wish and any reasonable period spent taking that advice should be excluded when calculating the 10 minute period.[3] It is also worth bearing in mind the legislative history of the relevant provisions of the Act,…

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 Brown v Police

Details

AGLC: Brown v Police [2012] NZHC 1192
Case: [2012] NZHC 1192
Decision Date: 30 May 2012

CaseChat Overview and Summary

The case of Brown v Police involves the appellant, Grant Kimber Brown, who appealed against his conviction in the District Court at Auckland on a charge of driving a motor vehicle with a breath alcohol level exceeding the legal limit. The appellant was given less than 10 minutes to elect to take a blood test, a requirement under the Land Transport Act 1998. The District Court found that there was reasonable compliance with the Act and convicted the appellant. The central issue before the High Court was whether the appellant was given a reasonable period to make his election under the Act.

The court had to determine if the appellant was allowed the requisite 10 minutes to elect a blood test as per the statutory requirement, and if there was reasonable compliance with the provisions of the Act. The court considered the officer's evidence and the legislative history of the relevant provisions, as well as the decision in Hutchinson v Police. The court found that the officer's practice of not reading the seconds on his watch did not constitute reasonable compliance with the Act. The court held that the officer should have ensured that the appellant was given the full 10 minutes or an additional minute or two to account for any shortfall.

The High Court allowed the appeal and quashed the conviction and sentence. The reasoning was that the officer's failure to read the seconds on his watch did not amount to reasonable compliance with the statutory requirements. The court held that the appellant was not given the full 10 minutes to make his election, and therefore the conviction was not supported by the evidence. The final order was the quashing of the conviction and sentence imposed by the District Court.

Orders