IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2018-425-000035
[2019] NZHC 140
BETWEEN PURO NATHAN COLEMAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 February 2019 Appearances:
S Claver for the Appellant
S N McKenzie for the Respondent
Judgment:
13 February 2019
JUDGMENT OF NATION J
Introduction
[1] On 4 October 2018, Judge Marshall convicted Mr Coleman of one charge of driving with an excess breath alcohol level (third or subsequent) following a defended hearing. He appeals this conviction on the basis the Judge was incorrect in finding reasonable compliance with his 10 minute period in which to elect a blood test. The 10 minute period had been interrupted by a Police officer talking to Mr Coleman at some length as to matters concerning his mental state and welfare.
District Court decision
[2] Judge Marshall found that there had been reasonable compliance with the 10 minute period under s 64(2) of the Land Transport Act 1998 (the Act). His Honour considered that the interruption was poorly timed but nevertheless made in good faith, and important enough for the Senior Constable to consider an interruption necessary.
COLEMAN v POLICE [2019] NZHC 140 [13 February 2019]
His Honour held that Mr Coleman’s election was not prejudiced by the interruption because his 10 minute period was recommenced, he was given his Bill of Rights on three occasions, and his mind had been redirected to his blood test election by a printout of the result of his evidential breath test. As all other matters had been conceded, the Judge found the charge proved.
Principles on appeal
[3] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.1
Submissions
Appellant’s submissions
[4] Mr Claver submitted that, with a “three quarter of an hour interruption” to the 10 minute period for electing whether to require a blood test, there had not been reasonable compliance under s 64(2) of the Act. On that basis, the evidence as to his alcohol level from the breath alcohol test would not have been admissible and Mr Coleman’s conviction would have to be quashed.
[5] Mr Claver submitted it was important that a person who was required to elect whether to have a blood test would have 10 minutes uninterrupted time after being given the required advice as to his right to make an election, as referred to in ss 70A and s 77(3)(a) of the Act. He submitted it was important this advice be given immediately…
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- Case
- [2019] NZHC 140
- Decision Date
CaseChat Overview and Summary
Final orders: The appeal is dismissed. Coleman remains convicted of driving with an excess breath alcohol level.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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