[1] Richard James Gullery appeals against his conviction by Judge MLSF Burnett in the District Court at Hamilton on one count of driving with excess blood alcohol under s 56(2) of the Land Transport Act 1998 (“the LTA”), the appellant having been convicted at least twice previously of a similar offence.

[2] Four grounds are advanced in support of the appeal, namely:

(a) the appellant did not receive a fair trial, contrary to ss 25(a) and 25(c)

of the New Zealand Bill of Rights Act 1990 (“the NZBORA”);

(b)the prosecution did not prove that it was not practicable to conduct the blood test at Huntly Police Station, so the requirement to accompany the Police officer to Ngaruawahia Police Station was not made lawfully under s 72(3) of the LTA and the blood sample was not “taken ... under” s 72 of the LTA, as required by s 56(2);

(c) the prosecution did not prove that there was a blood specimen, being venous blood taken in accordance with normal medical procedures, as required by the definition of “blood specimen” in s 2 of the LTA and that being an ingredient of the offence; and

(d)the blood sample was seized in an unreasonable manner, contrary to s 21 of the NZBORA, because the procedure used by the nurse failed to comply with normal and appropriate standards (they included the use of an alcohol swab when the test was to be for that same substance), and the physical injury caused to the appellant.

Factual background

[3] At approximately 1:35 am on 23 April 2012, the appellant was seen by Police to be driving in an erratic manner near Huntly. The Police officer who gave evidence, Constable Elvy, observed the appellant’s vehicle being driven into two driveways before reversing out and turning around. The vehicle was seen to be travelling at excessive speed and the driver appeared to be having trouble keeping

the vehicle in its lane. Constable Elvy stopped the vehicle, which was being driven by the appellant. Because the appellant exhibited signs of having consumed alcohol, he was breath tested and found to have a breath/alcohol content of over 400 micrograms of alcohol per litre of breath. Constable Elvy then requested the appellant to accompany him to the Huntly Police Station for an evidential breath test.

[4] The breath test was administered at the Police Station at approximately

1:55 am. The test showed a result of 570 micrograms of alcohol per litre of breath. After informing the appellant of that result, Constable Elvy told him he had

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 Gullery v Police

Details

AGLC: Gullery v Police [2013] NZHC 3014
Case: [2013] NZHC 3014
Decision Date: 14 November 2013

CaseChat Overview and Summary

Richard Gullery appeals his conviction by Judge MLSF Burnett in the District Court at Hamilton on one count of driving with excess blood alcohol. Four grounds of appeal are advanced. The first is that the appellant did not receive a fair trial, contrary to ss 25(a) and 25(c) of the New Zealand Bill of Rights Act 1990. The second is that the prosecution did not prove that it was not practicable to conduct the blood test at Huntly Police Station, so the requirement to accompany the police officer to Ngaruawahia Police Station was not made lawfully under s 72(3) of the Land Transport Act 1998 and the blood sample was not “taken... under” s 72 of the LTA, as required by s 56(2). The third is that the prosecution did not prove that there was a blood specimen, being venous blood taken in accordance with normal medical procedures, as required by the definition of “blood specimen” in s 2 of the LTA and that being an ingredient of the offence. The fourth is that the blood sample was seized in an unreasonable manner, contrary to s 21 of the New Zealand Bill of Rights Act 1990, because the procedure used by the nurse failed to comply with normal and appropriate standards (they included the use of an alcohol swab when the test was to be for that same substance), and the physical injury caused to the appellant. The court dismissed the appeal against conviction. It found that the trial was not unfair, that it was practicable for the blood test to be carried out in Ngaruawahia, that there was a blood specimen, and that the blood sample was not seized in an unreasonable manner.

Orders