Ge v Police - [2021] NZHC 2991

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGESTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-167

[2021] NZHC 2991

BETWEEN
JUN GE

Plaintiff

AND

NEW ZEALAND POLICE

Defendant

Hearing: 5 November 2021

Appearances:

C Mitchell for Appellant Z Trinder for Respondent

Judgment:

8 November 2021

JUDGMENT OF LANG J

[on appeal against conviction]

This judgment was delivered by me on 8 November 2021 at 11.30 am.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Auckland

GE v NEW ZEALAND POLICE [2021] NZHC 2991 [8 November 2021]

[1] Mr Ge pleaded not guilty to a charge of driving with excess blood alcohol in its aggravated form.1 Following a defended hearing Judge A-M J Bouchier found Mr Ge guilty on the charge.2

[2] Mr Ge appeals against conviction. He contends the Judge erred in her assessment of the evidence to the extent that a miscarriage of justice has occurred.3

[3] The appeal focuses on two issues. The first is a submission that the Judge unfairly predetermined the case against Mr Ge. The second is that the Judge erred in her assessment that Mr Ge knew he was entitled to obtain the services of a lawyer but declined to take advantage of that opportunity. As a result, his rights under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) were breached.

Background

[4] The charge was laid after an incident that occurred in the early hours of 29 October 2019. At approximately 2.20 am on that date the police received a report of a person asleep at the wheel of a stationary vehicle at a set of traffic lights situated on Tristram Avenue in Forrest Hill. A police patrol was despatched to the scene and on arrival the officers in the patrol vehicle found Mr Ge standing outside his vehicle. He exhibited signs of having consumed alcohol and was required to take a passive breath test. When this revealed the presence of alcohol Mr Ge was required to undertake a breath screening test. This also showed the presence of alcohol in Mr Ge’s breath. The officers then required Mr Ge to return to the Harbour Bridge police station for the purposes of an evidential breath test, blood test or both.

[5] Constable Chan, one of the officers who dealt with Mr Ge at the scene, said he became aware from his discussions with Mr Ge that he spoke Mandarin. He was concerned Mr Ge may not have understood the NZBORA rights the constable had advised him of at the scene. These included the right to obtain legal advice without delay and in private. Constable Chan therefore arranged for a colleague who spoke

1      Land Transport Act 1998, s 56(2) and (4).
2      New Zealand Police v Ge [2021] NZDC 6150.
3      Criminal Procedure Act 2011, s 232(2)(b).

Mandarin, Constable Wang, to come to the police station to translate the breath and
blood testing procedures to Mr Ge. These included his NZBORA rights.

[6] Constable Wang duly travelled to 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 Ge v Police

Details

AGLC: Ge v Police [2021] NZHC 2991
Case: [2021] NZHC 2991
Decision Date: 8 November 2021

CaseChat Overview and Summary

Mr Ge appealed against his conviction for aggravated driving with excess blood alcohol. The appeal was heard by Lang J, who was required to decide whether the trial Judge had erred in her assessment of the evidence. The appeal hinged on two issues. Firstly, whether the Judge unfairly predetermined the case against Mr Ge. Secondly, whether the Judge erred in her assessment that Mr Ge knew he was entitled to obtain the services of a lawyer but declined to take advantage of that opportunity, thereby breaching his rights under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA).

Lang J held that the Judge did not unfairly predetermine the case against Mr Ge. The exchange between the Judge and Mr Ge’s counsel demonstrated that the Judge had considered the likely issues to arise in the case, but there was no evidence to suggest that the Judge had closed her mind to the possibility of the defence succeeding. The second issue turned on whether Mr Ge understood his right to consult a lawyer without delay. The Judge concluded that Mr Ge understood this right because he had attempted to contact his own lawyer and refused to contact any other lawyers when offered a list of alternative lawyers. Lang J held that Mr Ge’s intoxication did not prevent him from understanding his right to legal advice, as he was able to converse with the police and had attempted to contact his own lawyer. Therefore, the Judge was correct in concluding that Mr Ge understood his right to consult a lawyer and Lang J dismissed the appeal against conviction.

Orders