Constable v The Queen - [2015] NZCA 52

IN THE COURT OF APPEAL OF NEW ZEALAND

CA513/2014
[2015] NZCA 52

BETWEEN	CORRINE MARIE CONSTABLE Applicant
AND	THE QUEEN Respondent

Hearing:	3 March 2015
Court:	Harrison, Fogarty and Dobson JJ
Counsel:	J A Farrow for Applicant Z R Hamill for Respondent
Judgment:	6 March 2015 at 3 pm

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Corrine Constable applies for leave to appeal against her conviction on one charge of driving with excess breath alcohol under s 56(1) of the Land Transport Act 1998 (the LTA).

Facts

One evening in October 2013 Ms Constable was stopped by police for speeding while driving her vehicle near Mosgiel. An officer requested her to submit to a passive breath test. Both that test and a later breath screening test returned positive results. An evidential breath test later administered at the Mosgiel Police Station returned a result of 547 micrograms of alcohol per litre of breath. Ms Constable’s breath reading was appreciably over the legal limit of 400 micrograms.
At 9.15 pm that evening the officer advised Ms Constable of the positive evidential breath test and that it could be of itself conclusive evidence for the purposes of a conviction for an offence if she did not exercise her right under ss 70A and 77(3) of the LTA to request a blood test within ten minutes. Ms Constable immediately answered that she did not like needles and did not wish to have a blood test. About three minutes into the ten minute period Ms Constable asked the officer if she had to remain at the police station any longer. She was worried that her prolonged absence from home would be causing her three children anxiety. The officer responded that Ms Constable had fulfilled her legal obligations. He was not entitled to keep her at the station any longer. Ms Constable then said she wanted to go home.
At about 9.20 pm, five minutes into the ten minute period, the officer prepared and served a summons on Ms Constable for driving with excess breath alcohol. He drove her home. Upon arrival there, the officer advised Ms Constable that although the ten minute period had now expired he would administer a blood test if Ms Constable requested it. She replied that she knew she had done wrong and did not like needles. She then went into her house.
In the District Court Ms Constable defended the charge on the ground that the police had failed to comply with s 70A because Ms Constable had not been afforded the full ten minute period within which to elect to have a blood test. In a carefully reasoned decision, Judge Bouchier dismissed this defence on the ground that there was reasonable compliance with the s 70A right.[1][2] In an equally full and careful decision Lang J dismissed Ms Constable’s appeal.[3] He was also satisfied that there had been reasonable compliance with s 70A and…

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 The Queen

Details

AGLC: Constable v The Queen [2015] NZCA 52
Case: [2015] NZCA 52
Decision Date: 6 March 2015 at 3 pm

CaseChat Overview and Summary

Corrine Marie Constable sought leave to appeal her conviction for driving with excess breath alcohol under section 56(1) of the Land Transport Act 1998. She argued that the police did not comply with her statutory right under section 70A to request a blood test within ten minutes of being informed of a positive breath test result. Constable claimed that she did not receive the full ten-minute period to decide whether to request a blood test because the officer allowed her to leave the police station after she expressed her unwillingness to undergo a blood test. The Court of Appeal, consisting of Harrison, Fogarty, and Dobson JJ, dismissed Constable's application for leave to appeal. The court held that Constable's argument was not speculative but based on the factual conclusion that Constable had made up her mind and did not wish to undergo a blood test, and the officer had no power to detain her against her will once she had completed the evidential breath test. The court found that both the District Court and High Court judges applied the correct legal principles in determining whether there had been reasonable compliance with section 70A and whether there was a risk of injustice or unfairness to Constable. The Court of Appeal held that there was no arguable issue arising on this application, let alone one that was of sufficient general or public importance to warrant leave to bring a second appeal. Therefore, Constable's application for leave to appeal was dismissed.

Orders