Cullen v Police - [2014] NZHC 1252

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000320 [2014] NZHC 1252

BETWEEN RAYMOND LESLIE CULLEN Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 November 2013

Appearances:

S C Blake for Appellant
K C Francis for Respondent

Judgment:

5 June 2014

JUDGMENT OF KEANE J

This judgment was delivered by me on 5 June 2014 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Blake Law, Auckland
Meredith Connell, Auckland

CULLEN v POLICE [2014] NZHC 1252 [5 June 2014]

[1] On 30 October 2013 Raymond Cullen was convicted of driving with an excess breath alcohol level on 29 March 2012. His level was 578 micrograms of alcohol per litre of breath. His offence was in the aggravated category. He was sentenced to 80 hours community work and six months community detention and disqualified indefinitely. He appeals his conviction and sentence.

[2] On his appeal against conviction, Mr Cullen contends, the Judge who convicted him, Judge C S Blackie, could not on the evidence conclude that, after the evidential breath test proved positive, the officer ‘without delay’ advised him of his right to elect to have a blood sample taken for analysis, or that he advised him of that right fully. He also contends that the officer failed at that point to re-advise him of his NZBORA rights.

[3] As to his sentence, Mr Cullen contends, the sentencing Judge, Judge Andrée

Wiltens, could not impose on him a zero alcohol licence. His offence date was 28

July 2012. The power to impose a zero alcohol licence did not come into force until

10 September 2012.

Prosecution evidence

[4] Sergeant Painter, the sole witness for the prosecution, said that at 12.57 am on 29 July 2012, as he was entering Great South Road, Manurewa, he saw a car travelling past at a slightly excessive speed. He signalled it to stop and he had the driver, Mr Cullen, undergo a breath screening test the result of which was ‘failed general over 400’.

[5] Sergeant Painter said that he showed Mr Cullen the result and required him to accompany him to a nearby ‘booze’ bus for an evidential breath test, blood test or both. As he was then detaining Mr Cullen, Sergeant Painter said, he gave him his NZBORA rights.

[6] At the bus, Sergeant Painter said, he began to complete the standard police breath/blood alcohol procedure sheet. He recorded that at the roadside Mr Cullen had told him that he had been drinking at a sports club and when he had his last

drink. Sergeant Painter then repeated to Mr Cullen his NZBORA rights and Mr

Cullen agreed that he had received those rights by signing the form of advice.

[7] Sergeant Painter said that he had Mr Cullen undergo an evidential breath test, using an approved device into which Mr Cullen blew twice. The lower of Mr Cullen’s two readings was 578 micrograms of alcohol per litre of breath; and when the device printed three copies…

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 Cullen v Police

Details

AGLC: Cullen v Police [2014] NZHC 1252
Case: [2014] NZHC 1252
Decision Date: 5 June 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Raymond Leslie Cullen appealed against his conviction and sentence for driving with an excess breath alcohol level. The court had to determine whether the police officer complied with the requirement to advise Cullen of his right to elect a blood sample within 10 minutes of the evidential breath test result being ascertained. The court also had to decide if the sentence imposed was appropriate. The prosecution argued that the officer reasonably complied with the requirement, while the defence contended that the prosecution failed to provide sufficient evidence to prove compliance. The court found that the prosecution did not provide sufficient evidence to prove that the officer complied with the requirement, and therefore, the conviction and sentence were quashed. The court did not need to address the appeal against sentence as it related to the zero alcohol licence imposed on Cullen, as it was a complex ground that was only raised in outline.

Orders