[1] Mr Harrison was found guilty on one charge of driving with excess blood alcohol, causing the death of Mr Richard Preston.1 He was sentenced to two years, four months’ imprisonment, disqualified from holding or obtaining a driver’s licence for a period of two years and ordered to pay reparation in the sum of $5,000 to the victims, namely the two daughters of Mr Preston.2

[2] Mr Harrison appeals against conviction and sentence. While there are multiple grounds of appeal against conviction, there are in essence three key issues, namely:

(a) Was Mr Harrison’s blood taken in breach of s 73(3) Land Transport
Act 1998 (LTA) because the person who took his blood was not “the medical practitioner in immediate charge”;

1 Police v Harrison DC Christchurch CRI 2013-061-363, 23 April 2014 [Substantive Decision]
2 Police v Harrison DC Christchurch CRI 2013-061-363, 11 July 2014 [Sentencing Notes].

HARRISON v POLICE [2014] NZHC 3126 [9 December 2014]

(b)If so, does s 64(2) provide dispensation for the non-compliance because there was reasonable compliance with s 73(3); and or

(c) Was it reasonably available to the Judge to find that Mr Harrison was the driver of the vehicle involved in the accident causing the death of Mr Preston?

Background

[3] On the afternoon of 23 December 2012 Mr Harrison and Mr Preston spent a few hours at the Waiau Lodge Hotel. They were observed leaving the hotel and turning left into Lyndon Street at about 6 pm. At some stage they made the decision to head home along Iverachs Road. The vehicle they were driving then crashed through a deer fence into a paddock where, due to the steepness of the hill, the vehicle came to rest approximately 100 metres down the hill. Mr Preston did not survive the accident. Mr Harrison, while conscious, was injured and could not remember what had happened.

[4] Mr Harrison was taken to Christchurch Hospital where a sample of his blood was taken by Dr Weaver. The blood analysis showed that he had 144 milligrams of alcohol per 100 millimetres. He was charged with two counts in the alternative:

(a) That on 23 December 2012 at Waiau he was the person in charge of a motor vehicle and caused the death of Richard William Preston while the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 milligrams of blood in that it was 144 milligrams of alcohol per 100 millilitres of blood (s 61(1)(b) and (3AA) LTA; OR

(b)That on 23 December 2012 he did drive a motor vehicle on a road, namely Lyndon Street, while the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millimetres of blood in that it was 144 milligrams of…

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 Harrison v Police

Details

AGLC: Harrison v Police [2014] NZHC 3126
Case: [2014] NZHC 3126
Decision Date: 9 December 2014

CaseChat Overview and Summary

Matthew William Harrison appeals against his conviction and sentence for driving with excess blood alcohol causing the death of Richard William Preston. The District Court Judge found that Mr Harrison was the driver of the deceased's vehicle and that his blood alcohol level exceeded the statutory limit. The appeal is against conviction and sentence. There are multiple grounds of appeal against conviction, but three key issues were identified: whether the taking of Mr Harrison's blood was in breach of s 73(3) of the Land Transport Act 1998 (LTA); whether s 64(2) provides dispensation for non-compliance with s 73(3); and whether it was reasonably available to the Judge to find that Mr Harrison was the driver of the vehicle involved in the accident. The appeal against sentence claims that the Judge erred in taking into account Mr Harrison's refusal to accept responsibility and in failing to discount the sentence to reflect his lack of memory of the events. The High Court held that the blood sample was taken in breach of s 73(3) and that s 64(2) did not provide dispensation for the breach. The High Court was also satisfied that the circumstantial evidence placed Mr Harrison in the driver's seat when he left the tavern and when he passed the fish and chip shop. The Court concluded that the evidence demonstrated beyond reasonable doubt that Mr Harrison was the driver of the motor vehicle at the time of the accident. The conviction was set aside. As for sentence, the High Court considered that the sentence, though harsh, was not manifestly excessive. However, the Court erred by taking into account Mr Harrison's refusal to accept responsibility and by failing to discount the sentence to reflect his lack of memory of the events. The appeal against conviction is allowed and the conviction is set aside. An end sentence of 27 months would have been appropriate.

Orders