Collier v Police - [2013] NZHC 2273

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-201 [2013] NZHC 2273

BETWEEN DENNIS GARY COLLIER Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 August 2013

Counsel:

S Blake for the Appellant
B Hamlin for the Respondent

Judgment:

3 September 2013

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 3 September 2013 at 1:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors / Counsel:
Mr S Blake, Barrister, Papakura
Mr B Hamlin, Meredith Connell, Office of the Crown Solicitor, Auckland

COLLIER v POLICE [2013] NZHC 2273 [3 September 2013]

[1] The appellant appeals against his conviction, and one aspect of his sentence, for an excess blood alcohol offence against the Land Transport Act 1998 (the Act).1

Appeal against conviction

[2] The appeal against conviction arises from the fact that, after the appellant had failed an evidential breath test conducted in a police bus on the roadside, he elected to provide a blood specimen and was taken to another location for that purpose. The respondent, as prosecutor, was required under s 72(3) of the Act to establish that it was not practicable for the blood specimen to be taken in the bus. The appellant submits that the respondent failed to do so.

The facts

[3] The essence of the background facts is as follows. The appellant was driving a car on a road in Papakura when he was stopped at a police compulsory breath testing checkpoint. This was at 7:15 pm. He failed a passive breath test and a breath screening test. He was then required, pursuant to s 69(1) of the Act, to accompany the police officer to the bus, which was nearby, for an evidential breath test. The test was conducted. The reading was 623 mg of alcohol per litre of breath. The appellant was advised of his right to undergo a blood test. At 8:01 pm he confirmed in writing his election to undergo a blood test. He was then told by the police officer that he was required to go with him to what is called the “EBA suite” in Manukau for the blood test. They got there at 8:30 pm. A registered nurse took a blood sample at
8:45 pm. Subsequent analysis established that there was 167 mg of alcohol per 100 ml of blood. No issues arise in relation to those events.

[4] The police officer was asked in cross-examination why the blood sample had not been taken on the bus. A blood specimen must be taken by a “medical practitioner or a medical officer”. The essence of the officer’s evidence was that there was no medical practitioner or medical officer on the bus. He said that a nurse had been contacted by another police officer and the nurse said to the other officer
that she was coming from Auckland City. A decision was then made that it would

1 Police v Collier DC Papakura CRI-2012-055-000271, 30 May 2013 (conviction) and 9 July
2013…

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 Collier v Police

Details

AGLC: Collier v Police [2013] NZHC 2273
Case: [2013] NZHC 2273
Decision Date: 3 September 2013

CaseChat Overview and Summary

Dennis Gary Collier appeals against his conviction and one aspect of his sentence for an excess blood alcohol offence under the Land Transport Act 1998. The appeal against conviction arises from the fact that after failing a breath test on the roadside, Collier elected to provide a blood specimen and was taken to another location for that purpose. Collier submits that the respondent failed to establish that it was not practicable for the blood specimen to be taken on the roadside. The court found that the prosecution did establish by admissible evidence that it was not practicable to conduct the test on the bus. The court was satisfied that there was no appealable error by the Judge in the exercise of his discretion to admit this evidence. The appeal against sentence is directed to the way in which the Judge applied s 65A of the Act. The Judge was required to disqualify Collier from holding or obtaining a driver licence until the New Zealand Transport Agency removes the disqualification under s 100 of the Act. The appeal against the order disqualifying Collier is allowed and that order is quashed. There are orders as follows: (a) there is an order pursuant to s 65 of the Act disqualifying Collier from holding or obtaining a driver licence until the Agency removes that disqualification with this disqualification commencing from 9 July 2013, (b) there is an order pursuant to s 65A(2)(a) of the Act disqualifying Collier from holding any driver licence for a period of 3 months commencing on 9 July 2013, (c) there is an order in terms of s 65A(2)(b) (i) to (iv) of the Act, and (d) pursuant to s 65A(2)(b)(v) of the Act there is an order that order (a) above pursuant to s 65 of the Act ends upon the appellant’s obtaining an alcohol interlock licence under s 65A(2)(b) and order (c) above.

Orders