Gill v Police - [2016] NZHC 1790

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-150 [2016] NZHC 1790

BETWEEN
HARKARAT SINGH GILL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 July 2016

Counsel:

S Blake for Appellant
I S Ko for Respondent

Judgment:

4 August 2016

JUDGMENT OF DUFFY J

This judgment was delivered by me on Thursday, 4 August 2016 at 12 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Manukau. S Blake, Auckland.

GILL v POLICE [2016] NZHC 1790 [4 August 2016]

[1] Mr Gill was found guilty of driving with excess breath alcohol (1190 mg of alcohol per litre of breath)1 following a Judge-alone trial in the District Court at Manukau. He appeals against his conviction on two grounds.

[2] First, Mr Gill submits that there was an unacceptable delay between the time when the result of his evidential breath test became available and the time when he was informed of his right to request a blood test, in breach of s 77(3) of the Land Transport Act 1998 (“LTA”).

[3] Secondly, Mr Gill submits that the results of his evidential breath test were improperly obtained and therefore inadmissible under s 30 of the Evidence Act 2006.

District Court decision

[4] The decision includes a summary of the events leading up to the evidential breath test. This factual account is not disputed.

[5] Briefly stated, on 29 December 2014 at approximately 3.30 pm, Mr Gill was the driver of a motor vehicle travelling on Takutai Avenue in Bucklands Beach, Auckland. Constable Patel was on patrol that day and had received instructions to carry out area inquiries for the driver of a vehicle who was believed to be heavily intoxicated. Mr Gill’s vehicle was eventually located and the Police activated red and blue flashing lights. Mr Gill pulled into the driveway of his home and the Police followed. When spoken to by Police, Mr Gill smelt of and admitted to consuming alcohol prior to driving. Breath testing procedures were carried out, returning a reading of more than 400 mg of alcohol per litre of breath, and Mr Gill was informed that he was required to accompany Constable Patel to the Ormiston Police Station for the purposes of an evidential breath test or blood test or both.

[6] At this stage, it appears that Mr Gill may have attempted to leave and move back inside his home. He was subsequently handcuffed and taken to Ormiston Police Station. Although Constable Patel described his behaviour as being generally
cooperative, Mr Gill was kept in handcuffs for the duration of the journey, which

1 Land Transport Act 1998, s 56(1).

was estimated to be between 15 and 20 minutes. He was not given his rights at this stage. All parties accept that this was an unlawful detention and a breach of s 22 of the New Zealand Bill of Rights Act 1990 (“NZBORA”), which protects individuals from arbitrary arrest or detention.

[7] Once he had arrived at the Ormiston Police…

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 Gill v Police

Details

AGLC: Gill v Police [2016] NZHC 1790
Case: [2016] NZHC 1790
Decision Date: 4 August 2016

CaseChat Overview and Summary

The appeal in Gill v Police was against a conviction for driving with excess breath alcohol. The appellant, Mr Gill, argued that the delay between the result of his evidential breath test becoming available and him being informed of his right to request a blood test was in breach of s 77(3) of the Land Transport Act 1998. He also contended that the results of his evidential breath test were improperly obtained and therefore inadmissible under s 30 of the Evidence Act 2006. The District Court found that there had been no unreasonable delay in informing Mr Gill of the result of his breath test and that the evidence obtained was not in consequence of a breach of the New Zealand Bill of Rights Act 1990. The High Court considered whether the District Court erred in its assessment of the evidence. The Court found that the delay in advising Mr Gill of his right to request a blood test was at the threshold of what was acceptable under s 77(3), but did not cross over into the territory of unacceptable delay. The Court also found that the evidential breath test results were not obtained in consequence of the breach of the New Zealand Bill of Rights Act 1990. The appeal against conviction was dismissed.

Orders