Duffy v Police - [2015] NZHC 1899

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000105 [2015] NZHC 1899

BETWEEN
DAMIAN JAMES DUFFY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
30 June 2015

Further submissions filed up to 7 August 2015

Counsel:

A Haskett for Appellant
S O'Connor for Respondent

Judgment:

11 August 2015

JUDGMENT OF ASHER J

This judgment was delivered by me on Tuesday, 11 August 2015 at 4.30pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
A Haskett, Auckland.
Meredith Connell, Auckland.

DUFFY v NZ POLICE [2015] NZHC 1899 [11 August 2015]

Introduction

[1] On 26 March 2015 the appellant Damian Duffy was convicted by Judge N Mathers of driving with excess blood alcohol after a defended hearing. On the same day Judge Mathers fined him $650, ordered him to pay court costs of $130 and disqualified him from driving for six months.

[2] The incident which led to Mr Duffy being charged took place on 21 August

2014. Mr Duffy was stopped at a checkpoint by a police officer, Sergeant Kennedy. He underwent a passive breath test which indicated there was alcohol on his breath. He was then asked to undergo a breath screening test, which he did, which gave a reading of over 400 micrograms of alcohol per litre of breath. At that stage, at
12.46 am Sergeant Kennedy required Mr Duffy to accompany him to the nearby truck or van where such persons are processed (which I will refer to by the commonly used name of “booze bus”) for an evidential breath test.

[3] Mr Duffy underwent an evidential breath test which disclosed a reading of

568 micrograms of alcohol per litre of breath. Mr Duffy was advised of this result at

12.56 am. Sergeant Kennedy then read to him the advice under the heading “positive evidential breath test given without delay and the Bill of Rights Act 1990 blood procedure” from the standard breath and blood alcohol procedure sheet.

[4] Mr Duffy indicated that he did not wish to speak to a lawyer. The 10 minute period in which a person in Mr Duffy’s situation can elect a blood alcohol test commenced at 1.01 am. It is the Police case that shortly after the start of that period Mr Duffy stated that he wished to undergo a blood test. Sergeant Kennedy arranged for a blood test and it was administered at 1.32 am by a medical officer, Ms Maugham. That test showed a blood alcohol reading of 126 milligrams of alcohol per 100 millilitres of blood.

[5] Mr Haskett for Mr Duffy has raised a number of arguments which he says were wrongly not accepted by Judge Mathers, and which should have led to the charge being dismissed. Overall it is submitted that because there was no admissible evidence of a valid election, there was no evidence the blood specimen was “taken

under” ss 72 and 73 of the Land Transport Act 1998, and therefore that element of

the offence under s 56(2) was not…

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 Duffy v Police

Details

AGLC: Duffy v Police [2015] NZHC 1899
Case: [2015] NZHC 1899
Decision Date: 11 August 2015

CaseChat Overview and Summary

Damian James Duffy was convicted of driving with excess blood alcohol and fined. Duffy appealed the conviction, arguing that his request for a blood test was not validly recorded. The court heard arguments about whether Duffy's request was admissible, whether it was opinion evidence, whether there was sufficient evidence, whether Duffy made a final election, and whether the evidence was obtained unfairly. The court found that Duffy's request for a blood test was a statement and was admissible. The court also found that there was sufficient evidence to support the conviction and that the evidence was not obtained unfairly. The appeal was dismissed.

Orders