Coleman v Police - [2019] NZHC 140

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…

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: [2019] NZHC 140
Decision Date: 13 February 2019

CaseChat Overview and Summary

Coleman v Police is an appeal against conviction by Puro Nathan Coleman for driving with an excess breath alcohol level. The appeal was heard by Nation J of the High Court of New Zealand, Invercargill Registry. The key legal issue was whether the District Court judge had erred in finding that there was reasonable compliance with the 10-minute period within which Coleman had to elect whether to undergo a blood test. Coleman argued that the 10-minute period was interrupted by a police officer who spoke to him at length about his mental state and welfare. Coleman argued that this interruption prevented him from making an informed decision. The High Court found that the District Court judge did not err in finding reasonable compliance. The High Court found that the interruption was made in good faith and was not intended to interfere with the testing process. The Court found that Coleman was given sufficient time to make his decision and that the interruption did not prejudice his ability to make an informed decision. The appeal was dismissed.

Final orders: The appeal is dismissed. Coleman remains convicted of driving with an excess breath alcohol level.

Orders