Constable v Police - [2014] NZHC 1970

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-14 [2014] NZHC 1970

BETWEEN
CORRINE MARIE CONSTABLE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 August 2014

Appearances:

J Farrow for Appellant
R D Smith for Respondent

Judgment:

20 August 2014

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 20 August 2014 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CONSTABLE v NEW ZEALAND POLICE [2014] NZHC 1970 [20 August 2014]

[1] After a defended hearing in the District Court, Judge Bouchier convicted Ms Constable on a charge of driving with excess breath alcohol.1 Ms Constable now appeals to this Court against conviction.

[2] The issue raised by the appeal is whether the constable who administered the breath testing procedures complied with the requirements of the Land Transport Act
1998 (“the Act”). More particularly, the appeal raises the issue of whether there was reasonable compliance with the requirement under s 70A of the Act that Ms Constable was to be given ten minutes after failing an evidential breath test within which to elect to undergo a blood test to assess the proportion of alcohol in her blood.

Background

[3] At approximately 8.35 pm on 28 October 2013, Constable Braid was monitoring vehicle speeds on Quarry Road near Mosgiel. He noted a black Suzuki Swift motor vehicle approaching his position, and locked the speed of the vehicle at
65 kilometres per hour. This was 15 kilometres per hour faster than the permissible speed limit in the area. The constable stopped the vehicle, and found that Ms Constable was the driver. After issuing Ms Constable an infringement notice for speeding, Constable Braid required Ms Constable to submit to a passive breath test. This returned a positive result, as did a subsequent breath screening test. Constable Braid then required Ms Constable to accompany him to the Mosgiel Police Station to undergo an evidential breath test, blood test or both.

[4] The evidential breath test revealed that Ms Constable had 547 micrograms of alcohol per litre of breath. At 9.15 pm, Constable Braid advised Ms Constable that she had ten minutes within which to elect whether or not she wished to undergo a blood test.

[5] Approximately three minutes later, Ms Constable asked whether she had to stay at the police station any longer. She said she was worried about what her three

1 New Zealand Police v Constable DC Dunedin CRI-2013-012-3051, 28 April 2014.

children would be thinking, because she had been away from home longer than they would expect her to be. At that point the constable told Ms Constable she had fulfilled her legal obligations, and that he was not able to require her to remain at the police station any longer. Ms Constable then said she wanted to go home. Constable Braid told her he would take her home as soon as he had prepared a summons.

[6] Ms Constable then waited for the constable to…

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 Constable v Police

Details

AGLC: Constable v Police [2014] NZHC 1970
Case: [2014] NZHC 1970
Decision Date: 20 August 2014

CaseChat Overview and Summary

Corrine Marie Constable appeals against her conviction for driving with excess breath alcohol, which was upheld by the District Court. The central issue in the appeal is whether the constable who administered the breath testing procedures complied with the statutory requirements of the Land Transport Act 1998. The Act mandates that a motorist, upon failing an evidential breath test, be given ten minutes within which to elect to undergo a blood test to assess the proportion of alcohol in their blood. The appeal specifically questions whether there was reasonable compliance with this statutory requirement.

Constable Braid stopped Ms Constable for speeding and required her to undergo a breath test, which returned a positive result. He informed her that she had ten minutes to decide whether to undergo a blood test. Approximately three minutes later, Ms Constable expressed concern about her children and asked if she could leave. Constable Braid advised her she had fulfilled her legal obligations and was free to go, which she accepted. Ms Constable did not request a blood test and was taken home by Constable Braid. The appeal hinges on whether Constable Braid's acceptance of Ms Constable's decision to forgo the blood test after only three minutes constituted reasonable compliance with the statutory requirements.

The court considered whether there was any risk of injustice or unfairness to Ms Constable due to the non-compliance with the ten-minute period. It was established that Ms Constable had clearly indicated her unwillingness to undergo a blood test, motivated by her dislike of needles and concern for her children. The constable did not exert undue pressure on her and respected her decision. The court found that, given Ms Constable's unequivocal stance against the blood test, there was no risk of injustice or unfairness. Furthermore, the breath test result was significantly over the legal limit, making it unlikely that a blood test would have exonerated Ms Constable. Therefore, the court held that there was reasonable compliance with the statutory requirements.

The appeal against the conviction is dismissed.

Orders