IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-036 [2015] NZHC 358
BETWEEN IAN MALCOLM DANIELS Appellant AND
POLICE Respondent
Hearing: 19 February 2015 Counsel:
J D Lucas for Appellant
N A Pointer for RespondentJudgment:
4 March 2015
JUDGMENT OF THE HON JUSTICE KÓS
[1] A bad day for Mr Daniels, and one about to get worse. After drowning his sorrows at a local bar he went out to his truck and started the engine. At that point a police constable emerged from the shadows of the night, breath-tested Mr Daniels and arrested him.
[2] Judge O’Driscoll convicted Mr Daniels of attempting to drive a motor vehicle
with excess breath alcohol.1 He was sentenced to 12 months supervision, fined
$1,500, and was also disqualified from holding a driver’s licence for 12 months and one day.
[3] Mr Daniels now appeals against conviction and sentence.
Background
[4] It was unchallenged in evidence that at about 1.30 am on Saturday 9 March
2013, Mr Daniels was sitting in the driver’s seat of his truck, with engine on,
1 Land Transport Act 1998, s 56; Police v Daniels DC Christchurch CRI-2013-009-002738,
9 April 2014.
DANIELS v POLICE [2015] NZHC 358 [4 March 2015]
headlights on, and an indicator blinking.2 At that point Constable Christianson, as I
have said, breath-tested and arrested him.
[5] What was challenged was what Mr Daniels said to the constable. The constable’s evidence was that Mr Daniels had said that he was “just having a sleep”. And that Mr Daniels could not explain why he had started the engine to do that. The constable’s notebook entries were produced in evidence. They include a contemporaneous note to that effect. It was apparently taken between 1.34 am and
1.45 am. Mr Daniels’ previous counsel did not challenge the constable’s recollection directly. But he did put to him that Mr Daniels’ evidence would be that he had started the engine in order to recharge the battery in his cellphone so that he could make a phone call. The constable said Mr Daniels had not given such an explanation at the time.
[6] Mr Daniels gave evidence before the Judge. He explained that he had had a very bad day with family issues. As a result he had been drinking for some hours at the bar. He said he had only started the engine to charge the cellphone. He went on to say:
I turned the key on, the truck was running, and I dialled my friend’s number. I couldn’t get a hold of one of them so I rang my other mate Dave’s number and I got through to him. But that’s when the police officer approached the vehicle so I just basically told him and hung up.
In cross-examination he gave a slightly different account:
Q. You say that when the constable approached, you were actually talking to your friend Dave on the phone?
A. I had his number dialled, I’ve got it on my phone bill which I…
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- Daniels v Police [2015] NZHC 358
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- [2015] NZHC 358
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