Dryden v Police - [2016] NZHC 92

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2015-483-000026 [2016] NZHC 92

BETWEEN
KEMP MATTHEW DRYDEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 February 2016

Counsel:

C P Brosnahan for Appellant
N A Refoy-Butler for Respondent

Judgment:

5 February 2016

JUDGMENT OF COLLINS J

Introduction

[1] I am dismissing Mr Dryden’s appeal against his conviction for driving with excess breath alcohol on 5 June 2015.1 Mr Dryden was convicted by Judge McGuire on 3 November 2015 in the Whanganui District Court.2

Background

[2] Mr Dryden failed a breath screening test when sitting in a police car near the McDonald’s restaurant in Taupo on 15 June 2015. He was taken to the Taupo Police Station where he failed an evidential breath test. Mr Dryden declined the option to
have a blood sample taken.

1 Land Transport Act 1998, s 56(1).
2 Police v Dryden [2015] NZDC 2245.

[3] The issue on appeal is whether Mr Dryden was unlawfully detained in the police vehicle at the time of the breath screening test and whether Judge McGuire erred when he held the evidence of the breath screening test, and all subsequently obtained evidence, was admissible under s 30 of the Evidence Act 2006 (the Evidence Act).

The District Court decision

[4] Judge McGuire heard evidence from a worker at McDonald’s. She described Mr Dryden arriving at the drive-through counter to order food at about 1.00 am. Mr Dryden was beeping his horn and slurring his words. After directing a series of abusive comments at the restaurant worker, Mr Dryden was told he would not be served food and he was told to drive off. Mr Dryden responded by parking his car in the drive-through lane thereby impeding other customers. The restaurant worker called the Taupo Police Station and a few minutes later two police officers arrived. She said the police officers told Mr Dryden to get out of his car and then took him away.

[5] Judge McGuire heard from Constable Jones. He said his partner, Constable Little, approached Mr Dryden when they arrived at the McDonald’s restaurant. Constable Little directed Mr Dryden to get out of his vehicle and make his way to the police car parked approximately five to ten metres away. Once Mr Dryden made his way over to where Constable Jones was standing, a passive breath test took place. The result showed alcohol to be present and so a breath
screening test was carried out.3 The result was over 400 micrograms of alcohol per

litre of breath. Mr Dryden was then required to accompany both police officers to the Taupo Police Station to carry out an evidential breath test, blood test or both.4
Mr Dryden was informed of his rights under the New Zealand Bill of Rights Act

1990. Constable Jones said Mr Dryden was verbally uncooperative and made the evidential breath screening procedure difficult.

[6] Mr Dryden spoke to a lawyer at 2.15 am for 15 minutes. Mr Dryden interfered with the evidential breath testing device…

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 Dryden v Police

Details

AGLC: Dryden v Police [2016] NZHC 92
Case: [2016] NZHC 92
Decision Date: 5 February 2016

CaseChat Overview and Summary

The appeal in Dryden v Police was dismissed by Collins J in the High Court of New Zealand. The appellant, Mr Dryden, had been convicted in the Whanganui District Court of driving with excess breath alcohol on 5 June 2015. The appellant was found to have failed a breath screening test when sitting in a police car near the McDonald’s restaurant in Taupo on 15 June 2015. The issue on appeal was whether Mr Dryden was unlawfully detained in the police vehicle at the time of the breath screening test and whether Judge McGuire erred when he held the evidence of the breath screening test, and all subsequently obtained evidence, was admissible under s 30 of the Evidence Act 2006. The court found that Mr Dryden was unlawfully detained. However, the court found that the breath screening test and all subsequently obtained evidence was admissible under s 30 of the Evidence Act. The appeal against conviction was dismissed. The sentence and orders made by Judge McGuire remained in force.

Orders