Grainger v Police - [2020] NZHC 1869

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000209

[2020] NZHC 1869

BETWEEN
NATALIE REBECCA GRAINGER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 July 2020

Counsel:

TD Clee for Appellant

LJ Sullivan for Respondent

Judgment:

30 July 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 30 July 2020 at 10.30 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Manukau. TD Clee, Auckland.

GRAINGER v POLICE [2020] NZHC 1869 [30 July 2020]

The appeal

[1] Ms Grainger was convicted of one charge of driving with excess breath alcohol.1 Judge David J Harvey fined and disqualified Ms Grainger from driving for six months.2 Ms Grainger appeals conviction and sentence. Mr Clee for Ms Grainger says the conviction appeal is the primary one. If it fails, the sentence appeal can be dismissed.

Background

[2] On the evening of 22 November 2018, Ms Grainger was at McDonald’s. Her car lightly collided with another. The driver of the other car, Meleina Lafu, spoke to Ms Grainger. Ms Lafu considered Ms Grainger unhelpful. And, to be either “under the influence or drunk”. Ms Lafu attempted to block Ms Grainger from leaving, but Ms Grainger mounted a kerb and drove away. Ms Lafu called Police and followed for a time.

[3] Just after 10.12 pm, Constable Peter McLean found Ms Grainger at home. She lived nearby. The officer required Ms Grainger to undergo a breath screening test. This happened at the doorway of the home. Ms Grainger failed the test. Constable McLean then required Ms Grainger to accompany him to the Police station. She there failed an evidential breath test: 762 micrograms of alcohol per litre of breath.

[4] Ms Grainger accepts she had been drinking before going to McDonald’s (one glass of wine). But, Ms Grainger says she drank more before Constable McLean arrived.

The case for Ms Grainger

[5] Mr Clee makes two arguments. First, Ms Grainger’s subsequent consumption of alcohol undermines the application of s 77(1) of the Land Transport Act 1998, because of the possible delay between events at McDonald’s and her home. I call this the presumption argument. Second, the breath screening test (and everything that

1 In contravention of the Land Transport Act 1998, s 56(1).
2 Police v Grainger [2020] NZDC 10721.

followed) was inadmissible because Constable McLean exceeded an implied licence when reaching inside to administer the breath screening test. Both arguments were raised with the Judge.

Analysis

[6] The presumption argument requires some introductions. Section 77(1) of the Act provides:

For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant’s breath indicated by the test.

[7] To this must be added s…

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 Grainger v Police

Details

AGLC: Grainger v Police [2020] NZHC 1869
Case: [2020] NZHC 1869
Decision Date: 30 July 2020

CaseChat Overview and Summary

Natalie Grainger appeals her conviction for driving with excess breath alcohol and the subsequent six-month disqualification from driving. The appeal was heard by Downs J on 28 July 2020, with TD Clee representing the appellant and LJ Sullivan representing the respondent. The court was required to decide whether the presumption under s 77(1) of the Land Transport Act 1998 applied in this case, given that Ms Grainger consumed alcohol between the incident and the breath screening test. The court also needed to determine if the breath screening test was inadmissible because Constable McLean exceeded his implied licence when reaching inside to administer the test.

Downs J held that the presumption under s 77(1) applied, as the delay between the incident and the test was unremarkable, and the combination of Ms Grainger's driving and Ms Lafu's belief that Ms Grainger had been drinking was sufficient to engage s 68(1)(b) of the Act. The court also found that Constable McLean's actions did not exceed the implied licence to enter private property for the purpose of reasonable enquiry, as he was merely giving something to Ms Grainger and not taking anything from her home or doing anything to get inside. The appeal was dismissed.

Orders