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He v Police

He v Police

Case [2022] NZHC 2618 11 October 2022

Mens Rea & Intention

Admissibility of Evidence

Limitation Periods

Compensatory Damages

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-258

[2022] NZHC 2618

BETWEEN
XIAO HE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 October 2022

Appearances:

C Mitchell for appellant

P J O’Boyle for respondent

Date of judgment:

11 October 2022

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 11 October 2022 at 2.00pm.

…………………………
Registrar/Deputy Registrar

Counsel/Solicitors:
C Mitchell, Barrister, Auckland Meredith Connell, Auckland

HE v POLICE [2022] NZHC 2618 [11 October 2022]

[1] Xiao He appeals the reserved decision of Judge S J Bonnar QC in the District Court at Auckland on 30 September 2021,1 finding Mr He guilty of driving with excess blood-alcohol,2 being 146 milligrams of alcohol per 100 millilitres of blood.

Background

[2] Mr He and two passengers were stopped in his car at a police checkpoint in Auckland’s Mercury Lane at 11.45 pm on 20 December 2019. He was alleged to have failed passive, screening and evidential breath tests, the last after a brief delay in the back of the police car caused by Mr He interrupting the constable’s administration of the last test’s procedure. A supervising sergeant interceded, initially getting into the front seat of the car to explain the constable needed to go through the procedure, before leaving the car to recover Mr He’s cellphone from him after Mr He recorded part of their interaction.

[3] In response to the constable’s subsequent explanation of his rights, Mr He then affirmed he wished to speak to a lawyer. The constable called a rostered solicitor from her own cellphone, explained Mr He was undergoing an evidential breath-alcohol procedure, handed the cellphone to Mr He and exited the car. At the conclusion of the call, Mr He opened the car door and handed the cellphone back to the constable. The constable got back into the car and concluded the procedure, asking Mr He to acknowledge he was advised of his rights, which Mr He declined to do.

[4] Mr He then accompanied the constable to the Auckland Central police station, where his blood specimen was obtained. There is no dispute with the blood testing procedure or result.

Judgment under appeal

[5] At issue was if the blood test was admissible, if obtained without prefatory breath tests;3 in breach of Mr He’s rights to legal counsel on detention;4 or under threat

1      Police v Xiao He [2021] NZDC 19292.
2      Land Transport Act 1998, s 56(2): the offence is driving while the proportion of alcohol in the person’s blood exceeds 80 milligrams of alcohol per 100 millilitres of blood.
3      Sections 69 and 72.
4      New Zealand Bill of Rights Act 1990, s 23(1)(b).

of arrest without advice of the availability of bail.5 After an extensive review of the evidence given at trial by the constable, Mr He and one of his passengers — including a 15-second video clip recorded by Mr He on his cellphone, of the sergeant’s intercession in the 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 He v Police

Details

AGLC: He v Police [2022] NZHC 2618
Case: [2022] NZHC 2618
Decision Date: 11 October 2022

CaseChat Overview and Summary

Xiao He appeals the District Court’s finding him guilty of driving with excess blood alcohol. The issue is whether the District Court erred in finding Mr He’s right to legal counsel on detention was not breached. The District Court was satisfied Mr He’s right to consult counsel in private was afforded. The Court of Appeal’s explanation of the availability of bail in the event of arrest for refusing a blood alcohol test, if such a possibility arises, was considered. The Court held the evidence did not support a conclusion the blood test was obtained unfairly, and the Judge did not err in finding no miscarriage of justice. The appeal is dismissed.

Orders