Faiva v Police - [2016] NZHC 2882

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-202 [2016] NZHC 2882

BETWEEN
LOPETI FAIVA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 November 2016

Appearances:

M Ryan for Appellant
R N T Thompson for Respondent

Judgment:

1 December 2016

JUDGMENT OF LANG J

[on appeal against pre-trial ruling and conviction]

This judgment was delivered by me on 1 December 2016 at 4.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

FAIVA v NEW ZEALAND POLICE [2016] NZHC 2882 [1 December 2016]

[1] Mr Faiva faced a charge of driving a motor vehicle with excess breath alcohol.1 He challenged the admissibility of the evidential breath test result that the prosecution relied upon to prove the charge. In a pre-trial ruling delivered on 20
May 2016, Judge Jelas held that the evidence was admissible.2 Mr Faiva then

entered a guilty plea to the charge.

[2] Mr Faiva appeals against conviction on the basis that the Judge wrongly held the evidential breath test result to be admissible.

Background

[3] The evidence is silent as to the circumstances surrounding Mr Faiva’s detention for the purpose of providing an evidential breath test. I infer, however, that he had earlier failed a passive screening test after being stopped in circumstances indicating he had been driving. He was then required to accompany a police officer to a mobile processing facility, commonly known as a “booze bus”, for an evidential breath test to be carried out.

[4] The police officer who gave evidence before the Judge completed a standard form as he went through the breath testing procedure. This showed that the officer advised Mr Faiva of the reasons for his detention and his rights in respect thereof at
23.47 hours, or 11.47 pm. Mr Faiva signed the form to confirm the correctness of this information. The form then recorded that the evidential breath testing procedure commenced at 23.49 hours.

[5] The police officer also produced as an exhibit a copy of the printout provided by the evidential breath testing device. Consistently with the form completed by the officer, the printout showed that the machine commenced the breath testing procedure at 23.49 hours. The machine conducted a calibration check at 23.49 hours, and Mr Faiva then provided a sample of his breath at 23.50 hours. This returned a result of 549 micrograms per litre of breath at 23.50 hours. Mr Faiva then attempted to provide a second sample of his breath at 23.52 hours, but this proved to
be insufficient. He provided a third sample of his breath at 23.53 hours, and this

1 Land Transport Act 1998, s 56(1).
2 Police v Faiva [2016] NZDC 8753.

produced a reading of 559 micrograms of alcohol per litre of breath. The printout recorded that the device then conducted a further calibration check at 23.54 hours before producing the final result. In advising the final result the machine defaulted to the lower of the two readings it had obtained, meaning that Mr Faiva…

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 Faiva v Police

Details

AGLC: Faiva v Police [2016] NZHC 2882
Case: [2016] NZHC 2882
Decision Date: 1 December 2016

CaseChat Overview and Summary

Lopeti Faiva was charged with driving a motor vehicle with excess breath alcohol, contrary to s 56(1) of the Land Transport Act 1998. Faiva appealed against a pre-trial ruling that the evidential breath test result, which the prosecution relied upon to prove the charge, was admissible. The appeal was heard on 28 November 2016, and judgment was delivered on 1 December 2016. Faiva argued that the evidential breath test result should not have been admitted because the police officer who administered the test took seven minutes to advise Faiva of the result and its consequences. The court considered whether there had been a breach of s 77(3) of the Act, which provides that the result of a positive evidential breath test is inadmissible if the person who underwent the test was not advised of the result and its consequences without delay after the result was ascertained. The court found that the advice was given within a reasonable time and that the test result was therefore admissible. The appeal was dismissed.

Orders