Ching-Joyce v Police - [2012] NZHC 1053

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000021 [2012] NZHC 1053

JAMES CHING-JOYCE
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 16 May 2012

Appearances: P N Dyhrberg for Appellant
K J Basire for Respondent

Judgment: 17 May 2012

ORAL JUDGMENT OF CHISHOLM J

[1] Following a defended hearing in the District Court in Christchurch the appellant was found guilty of driving with excess breath alcohol.[1] The charge he faced had been laid in the aggravated form, that is to say it was alleged that he had been convicted at least twice previously.

[1] Police v Ching-Joyce District Court, Christchurch, CRI-2010-009-014146, 30 November 2011.

[2] Mr Ching-Joyce appeals against that conviction. The appeal concerns the

10 minute period under s 77(3) of the Land Transport Act 1998 within which the suspect can decide whether or not to give a blood sample. It is alleged by Mr Ching- Joyce that this requirement was breached and the evidence of the positive evidential
breath test was inadmissible.

CHING-JOYCE V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000021 [17 May 2012]

Facts

[3] During the early hours of 17 September 2010 the appellant was stopped by Acting Sergeant Crowther. Following a positive breath screening test he accompanied the officer to the Christchurch Police Station where he underwent an evidential breath test. That test produced a result of 715 micrograms of alcohol per litre of breath test.

[4] Having read the Advice of Positive Evidential Breath Test form to the appellant, the officer asked the appellant if he understood it, to which the appellant responded “yes”. The relevant form, which acknowledges that the enforcement officer had advised the appellant of “the matters set out above”, was signed by the appellant. It was produced as an exhibit..

[5] Amongst other things the form that was read to the appellant states:

If you do not within 10 minute request a blood test, the test you have just undergone could, of itself, be conclusive evidence to lead to your conviction for an offence against the Land Transport Act 1998.

The form continues “If you wish to undergo a blood test you must request one within

10 minutes”. According to the form the advice was given at 3 a.m. Then the officer gave the appellant his Bill of Rights which is timed at 3:10 a.m.

[6] Events from that point are best described in the officer’s own words:

The defendant signed the Advice of Positive Evidential Breath at 3:10 a.m. which I informed him was to start the 10 minute period. At the same time the defendant stated that he did not wish to have a blood test taken and just wanted to go. I then took the defendant through to an interview room where I left him. I then went out of his view to complete personal checks and fill in the required paperwork. At 3:30 a.m. I went back to the defendant and served him with a court summons and a traffic offence notice.

The officer went on…

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 Ching-Joyce v Police

Details

AGLC: Ching-Joyce v Police [2012] NZHC 1053
Case: [2012] NZHC 1053
Decision Date: 17 May 2012

CaseChat Overview and Summary

James Ching-Joyce appeals against a conviction in the District Court for driving with excess breath alcohol, which was laid in the aggravated form due to prior convictions. The central issue in this appeal is whether the ten-minute period under section 77(3) of the Land Transport Act 1998 within which Ching-Joyce could request a blood test was improperly handled by the police, rendering the breath test evidence inadmissible. The court was required to determine whether the police officer's actions inadvertently conveyed to Ching-Joyce that he could not change his mind about requesting a blood test within the stipulated period. The District Court had found no breach in the procedure and upheld the conviction.

Chisholm J examined the relevant legal principles, referencing the Court of Appeal decision in Auckland City Council v Haresnape, which holds that an officer must not give the impression that a person cannot change their mind about requesting a blood test within the ten-minute period. The Court of Appeal had ruled that as long as the officer avoids giving such an impression, they need not explicitly state that the person can still change their mind. Ching-Joyce's counsel argued that the officer had unwittingly given such an impression by leaving him alone for twenty minutes. However, the High Court found that Ching-Joyce had been fully informed about the ten-minute period and had ample opportunity to request a blood test when the officer returned. The court concluded that the officer did not give any impression that Ching-Joyce could not change his mind and that there was no need for the officer to continually check on Ching-Joyce during the period.

Chisholm J also considered the relevance of the reasonable compliance provisions under section 64(2) of the Act, which permits deviations from strict compliance if there has been reasonable adherence to the relevant provisions. However, the court found it unnecessary to delve into this aspect since it had concluded that there was no improper conduct by the officer. The appeal was dismissed, affirming the District Court's conviction.

Orders