Freeman v Police - [2018] NZCA 480

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA365/2018
[2018] NZCA 480

BETWEEN	RODNEY ALLEN FREEMAN Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	25 October 2018
Court:	Brown, Courtney and Katz JJ
Counsel:	A S P Tobeck for Applicant H G Max for Respondent
Judgment:	7 November 2018 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

The applicant Mr Freeman was convicted in the District Court at Tokoroa on 1 November 2017 of driving with excess breath alcohol.[1] His appeal to the High Court was dismissed.[2]
[1]Police v Freeman [2017] NZDC 23561 [DC judgment].
[2]Freeman v Police [2018] NZHC 1248 [HC judgment].
Mr Freeman seeks leave under s 237 of the Criminal Procedure Act 2011 for a second appeal to this Court. Section 237(2) provides that the Court must not give leave for a second appeal unless satisfied that:
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

The legislative context

The proposed appeal concerns the interpretation of the Land Transport (Breath Tests) Notice 2015 (the 2015 Notice). The predecessor to that notice, the Transport (Breath Tests) Notice (No 2) 1989, provided for the results of an evidential breath test from various breath screening devices as follows:
10Manner of carrying out evidential breath tests by means of DataMaster, Dräger 7110, Intoxilyzer 5000, or Seres
…
(c) Step 3 (results of test):
(i)The results of the various steps in the testing sequence will be shown on the result card or print‑out, and will include the Evidential Breath Test Result which shall be taken to indicate the number of micrograms of alcohol per litre of breath of the person tested:
(ii)If the Evidential Breath Test Result is “Incomplete Test”, the test has been unable to be carried out.
In Henderson v Police, where the device failed to print out a result of the evidential breath test in hard copy form, it was held that, as the whole purpose for which the device was designed was evidential, the record of result was an integral

part.[3] Without such a result recorded in the prescribed form the testing procedure had to be regarded as incomplete. Goddard J stated:[4]

Whilst it is correct that a police officer is able to observe and make his or her own record of the lowest of the two scores displayed on the screen of the device, that does not constitute a result in the prescribed form.
[3]Henderson v Police [2005] DCR 569 (HC).
[4]At [8].

To address such an outcome a new provision was introduced in the 2015 Notice:
9Manner of carrying out evidential breath tests by means of Dräger 7510NZ or Dräger 9510NZ
…
(c) Step 3: Results of test
(i) The result of the Evidential Breath Test (which, under section 77(1)…

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 Freeman v Police

Details

AGLC: Freeman v Police [2018] NZCA 480
Case: [2018] NZCA 480
Decision Date: 7 November 2018 at 10.30 am

CaseChat Overview and Summary

In Freeman v Police, Rodney Allen Freeman sought leave to bring a second appeal against his conviction for driving with excess breath alcohol, which was initially upheld by the District Court and later by the High Court. The Court of Appeal was required to determine whether there were grounds for a second appeal under s 237 of the Criminal Procedure Act 2011, which mandates that leave must be granted if the appeal involves a matter of general or public importance, or if a miscarriage of justice may have occurred or may occur unless the appeal is heard. The crux of the proposed appeal was the interpretation of the Land Transport (Breath Tests) Notice 2015, specifically regarding the evidential status of a printout from an evidential breath testing device and the applicability of s 64(2) of the Land Transport Act 1998 to regulations made under the authority of the Act.

The Court of Appeal, while acknowledging that the 2015 Notice is broader than previous notices as it does not prescribe the evidential form for the result of the breath test procedure, concluded that the prosecution is entitled to establish the result on the display panel in various ways, including by reference to the printout. This interpretation aligns with the purpose of the Act and avoids an overly narrow reading. The Court also found that the provisions of the 2015 Notice fall within the ambit of s 64(2) of the Act. Consequently, neither of the proposed grounds of appeal involved a matter of general or public importance. The Court further determined that the District Court’s decision was thorough and sound, and there was no miscarriage of justice.

The application for leave to bring a second appeal was declined.

Orders