Edwards v Police - [2012] NZHC 2778

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000197 [2012] NZHC 2778

NATHAN GRAHAM EDWARDS
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 23 October 2012

Counsel: A Comeskey for Appellant
A Longdill for Respondent

Judgment: 23 October 2012

JUDGMENT OF WOOLFORD J [as to appeal against conviction]

Solicitors/Counsel:

Mr A Comeskey, Barrister, Auckland
Crown Solicitor, Auckland

EDWARDS V NZ POLICE HC AK CRI-2012-404-000197 [23 October 2012]

[1] Mr Edwards was charged driving with excess blood alcohol after being stopped and tested on 24 March 2010. A District Court Judge found the information proved and convicted Mr Edwards on 2 February 2012.[1] It was his fifth such offence. On 13 June 2012, the Judge disqualified Mr Edwards for a year and a day and imposed a sentence of 10 weeks home detention.

[1] Police v Edwards DC Waitakere CRN-1009-000-3145, 2 February 2012.

[2] Mr Edwards applied to defer the start date of his disqualification pending his appeal to this court. That application was declined by the District Court. Mr Edwards subsequently appealed that refusal to defer. The appeal was heard by Katz J. In a judgment 10 September 2012 she dismissed the appeal.[2]

[2] Edwards v Police [2012] NZHC 2320.

[3] The appellant’s substantive appeal against his conviction remains to be determined in this proceeding. It centres on the propriety of the manner in which the breath alcohol testing was carried out.

Factual background

[4] The facts of this case are not in dispute. On 24 March 2010, at around

3.00 am, Constable Cattanach stopped Mr Edwards in the Ranui area. The constable administered a passive breath test, the purpose of which was to detect whether there was any presence of alcohol in Mr Edwards’ breath. That device showed a positive result.

[5] The Constable then administered a breath screening test which was designed to show whether Mr Edwards was over the breath alcohol limit. This is not an evidential breath test. Mr Edwards also failed this test.

[6] Constable Cattanach required Mr Edwards to go with him to the Henderson
Police Station for the purposes of an evidential breath test and/or a blood test. The evidential breath alcohol test showed a level of 493 micrograms of alcohol per litre

of breath. Of particular importance in this case is the fact that Mr Edwards was only asked to blow into the device a single time.

[7] Having taken the opportunity to speak to a lawyer, Mr Edwards then opted to take a blood test. That test ultimately showed that Mr Edwards had a blood alcohol level of 114 milligrams of alcohol per 100 millilitres of blood.

District Court Decision

[8] In the District Court the appellant submitted that the testing procedure had been invalidated by the fact that he had only blown into the evidential breath testing device once. As a result, it was said there was no evidential breath test carried out and the prosecution was, therefore, fundamentally flawed.

[9] The District Court Judge considered a number of…

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 Edwards v Police

Details

AGLC: Edwards v Police [2012] NZHC 2778
Case: [2012] NZHC 2778
Decision Date: 23 October 2012

CaseChat Overview and Summary

The case of Edwards v Police involved Nathan Graham Edwards, who was convicted of driving with excess blood alcohol by a District Court Judge on 2 February 2012. The conviction arose from an incident on 24 March 2010, where Edwards was stopped by Constable Cattanach and subjected to a series of alcohol tests. The substantive appeal against his conviction was heard by Woolford J in the High Court of New Zealand, Auckland Registry. The primary issue in the appeal was the propriety of the manner in which the breath alcohol testing was carried out.

The appellant argued that the testing procedure was invalid because he was only asked to blow into the evidential breath testing device once, thereby rendering the evidential breath test result inadmissible. The District Court Judge, however, found that any defect in the testing procedure was cured by the reasonable compliance provisions in the Land Transport Act 1998 and the subsequent blood test result. The respondent argued that the test did produce a result and that the statutory mechanisms in s 64 were sufficient to protect against errors in the testing process.

Woolford J, in delivering the judgment, considered the relevant statutory provisions and the authorities of Falesiva v Ministry of Transport and Aylwin v Police. The Court of Appeal in Falesiva held that the evidential breath test provisions should be interpreted in a manner that ensures the blood test result stands even if there was an error in the evidential breath test. Similarly, the Supreme Court in Aylwin concluded that the legislative intent was to preclude challenges to the result of a breath screening test or an evidential breath test, and to protect the right of election to have a blood test. Woolford J found that these principles applied equally in the present case and that the appeal should be dismissed. The court acknowledged the appellant's personal matters but emphasized the importance of statutory protections against technical defences in such cases.

In conclusion, Woolford J dismissed the appeal and directed that Mr Edwards' home detention sentence commence on 29 October 2012.

Orders