Flanagan v Police - [2018] NZHC 1589

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2018-485-13

[2018] NZHC 1589

BETWEEN WILLIAM JAMES TANGIIUA FLANAGAN
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 June 2018

Appearances:

L Caris for the Appellant

H Goodhew for the Respondent

Judgment:

29 June 2018

JUDGMENT OF CULL J

[Appeal against conviction]

[1] On 27 September 2017, Mr Flanagan was convicted of one charge of refusing a blood specimen to be taken, having been required to do so.1 Mr Flanagan was convicted following a judge-alone trial2 and was disqualified from holding a driver licence for six months as a result.3

[2] Mr Flanagan appeals his conviction on the basis that the Judge erred in his assessment of the facts and law to such an extent that a miscarriage of justice has occurred. Mr Flanagan submits a number of errors, either individually or cumulatively, have resulted in a miscarriage. Specifically, the Judge’s finding as to the reliability of various witnesses was not reasonably supported by the evidence

1      Land Transport Act 1998, s 60(1)(a). Maximum penalty for a first offence is three months’ imprisonment or a fine not exceeding $4,500, and the court must order the person be disqualified from holding or obtaining a driver licence for six months or more.
2      New Zealand Police v Flanagan [2017] NZDC 23389 [Conviction decision].
3      New Zealand Police v Flanagan [2018] NZDC 4779.

FLANAGAN v NEW ZEALAND POLICE [2018] NZHC 1589 [29 June 2018]

before the Court; the Judge erred in finding that the police took reasonable steps to facilitate Mr Flanagan’s access to a lawyer; the Judge erred in law in finding that Mr Flanagan breached the requirements imposed on him under s 72(2) of the Land Transport Act 1998; and the Judge erred in finding that Mr Flanagan was treated with humanity and dignity. Counsel for Mr Flanagan, Ms Caris, submits this conviction must be quashed.

[3] The Crown opposes this appeal and submits there has been no miscarriage of justice. The Crown submits all of the Judge’s challenged findings were reasonable and he had sufficient evidence before him to make his findings.

Factual background

[4] At the time of the incident, Mr Flanagan was a fourth-year law and commerce student at Victoria University. He suffers from ADHD and dyslexia and receives support for these disabilities at University.

[5] At approximately 12.40 am on 4 August 2016, Mr Flanagan was driving a car in central Wellington. A police car drove towards his car. Mr Flanagan stopped his car in the middle of the road and pulled into a carpark.

[6] The Constable, who was driving the police car, asked Mr Flanagan to open his window. Mr Flanagan refused. While talking through the window, Mr Flanagan confirmed he had been drinking that evening. The Constable informed him that he was required to undergo a breath screening test. Mr Flanagan got out of the car and began to walk away from the Constable. The…

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 Flanagan v Police

Details

AGLC: Flanagan v Police [2018] NZHC 1589
Case: [2018] NZHC 1589
Decision Date: 29 June 2018

CaseChat Overview and Summary

In Flanagan v Police, the appellant, Mr Flanagan, appealed against his conviction for refusing to permit a blood specimen to be taken, having been required to do so. The appeal was dismissed by the Court. The appellant was convicted following a judge-alone trial and was disqualified from holding a driver’s licence for six months as a result. The appellant submitted several grounds of error, including that the Judge erred in his assessment of the facts and law to such an extent that a miscarriage of justice has occurred. The Crown opposed the appeal and submitted there has been no miscarriage of justice. The Court found that the appeal against conviction is dismissed.

Orders