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Dooley v Police

Dooley v Police

Case [2018] NZHC 2387 11 September 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-118

[2018] NZHC 2387

BETWEEN
LEONARD DOOLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 August 2018

Appearances:

P Winkler and M Mellin for the Appellant A Luck for the Respondent

Judgment:

11 September 2018

JUDGMENT OF GORDON J

This judgment was delivered by me
on 11 September 2018 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Crown Solicitor, Auckland Counsel: P Winkler, Auckland

DOOLEY v POLICE [2018] NZHC 2387 [11 September 2018]

Introduction

[1] The appellant, Leonard Dooley, appeals his conviction on one charge of driving with excess breath alcohol.1 He also appeals the finding that he committed an infringement offence by breaching r 2.3(2)(a) of the Land Transport (Road User) Rule 2004, namely that he failed to keep left while operating a motor vehicle.2

[2] Following a one-day Judge alone trial on 9 November 2017, Judge de Ridder, in the District Court at Kaikohe, convicted Mr Dooley of the charge of driving with excess breath alcohol, and found that he committed the infringement offence by failing to keep left.3

[3] On 19 April 2018, Mr Dooley filed a notice of appeal. He says that the evidential blood alcohol result was inadmissible and the charge should have been dismissed. He submits that Judge de Ridder erred in fact and law both in relation to his decision on the charge of driving with excess blood alcohol and in relation to his finding that the infringement offence was committed.

[4]The Crown opposes the appeal.

Factual background

[5] On the evening of 24 September 2016, Mr Dooley was at the Duke of Marlborough Tavern in Russell, in the Bay of Islands. While two police officers, Constables Gorrie and Tipoki, were speaking to the manager of the Tavern, Mr Dooley approached them and started a conversation. Constable Gorrie said that Mr Dooley appeared a little bit intoxicated, while Constable Tipoki said he could smell alcohol on Mr Dooley’s breath and formed the view that he was intoxicated.

1      Land Transport Act 1998, s 56(2). As per s 56(3), the maximum penalty is imprisonment for a term not exceeding three months or a fine not exceeding $4,500. The court must also order the person be disqualified from holding or obtaining a driver’s licence for six months or more.
2      See Land Transport Act, s 40(1); Land Transport (Offences and Penalties) Regulations 1999, r 4(1). As per s 375(1)(a) of the Criminal Procedure Act 2011, the court must not convict the defendant of an infringement offence.
3      New Zealand Police v Dooley [2017] NZDC 27610.

[6] When the police officers walked to their vehicle, Mr Dooley walked past them and went into the RSA.

[7] The police officers left the Tavern and conducted a routine patrol around the wider Russell area. After about 30 minutes, they returned. They saw several vehicles leaving the area around the Tavern. They…

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 Dooley v Police

Details

AGLC: Dooley v Police [2018] NZHC 2387
Case: [2018] NZHC 2387
Decision Date: 11 September 2018

CaseChat Overview and Summary

Leonard Dooley appeals his conviction for driving with excess breath alcohol and the finding that he committed an infringement offence by failing to keep left while operating a motor vehicle. Dooley submits that the evidential blood alcohol result was inadmissible and the charge should have been dismissed. He also contends that Judge de Ridder erred in fact and law both in relation to his decision on the charge of driving with excess blood alcohol and in relation to his finding that the infringement offence was committed. The Crown opposes the appeal. The High Court found that the appeal should be dismissed. It held that the Judge was not required to take further steps to facilitate any form of communication with a lawyer as there were no circumstances "calling for obvious care and further inquiry". The Court also held that the Judge's finding that Dooley did not communicate any wish to consult with a lawyer was plainly open to the Judge on the evidence. The Court was also satisfied that there was no arbitrary detention. The Court dismissed the appeal against conviction and the appeal against the finding that Dooley committed an infringement offence.

Orders