Hedley v Police - [2022] NZHC 714

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2021-425-000016

[2022] NZHC 714

BETWEEN
CLINTON WILLIAM HEDLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2021-425-000017

BETWEEN

PETER WILLIAM BULLEID
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 March 2022

Appearances:

A S P Tobeck for the Appellant Hedley S D Cullen for the Appellant Bulleid R W Donnelly for the Respondent

Judgment:

8 April 2022

JUDGMENT OF NATION J

Introduction

[1] The appellants, Mr Hedley and Mr Bulleid, were both convicted by Judge Garland of one charge of driving with excess breath alcohol1 after consecutive Judge- alone trials.2 Together, they appeal their convictions.

1 Land Transport Act 1998, s 56(1); maximum penalty three months’ imprisonment.
2 Police v Bulleid [2021] NZDC 11767; and Police v Hedley [2021] NZDC 11772.

HEDLEY & BULLEID v POLICE [2022] NZHC 714 [8 April 2022]

Facts

[2]The facts were not disputed.

[3] On 17 July 2020 at approximately 8:00 pm, Constable Watkinson observed a white ute pull out of a driveway on the north side of the road at speed. The Constable stopped the vehicle and spoke to the driver, asking if he had been drinking. The driver, Mr Hedley, acknowledged he had consumed a couple of drinks. He was required to complete a breath test without delay. This gave a result of over 400 micrograms per litre of breath. The Constable read Mr Hedley his rights and completed the breath test procedure per the POL 515 (Breath and Blood Alcohol Procedure Sheet).

[4] The Constable advised Mr Hedley of his rights by reading from Block H on the sheet:

H. BORA ACT 1990 – EVIDENTIAL BREATH TEST ADVICE - MOBILE ROAD SAFETY BUS/STATON ACTION

•    “You have been detained for the purpose of breath or blood test procedures for alcohol.”

•    “You have the right to remain silent.”

•    “You do not have to make any statement.”

•    “Anything you say will be recorded and may be given in evidence in court.”

•    “You have the right to speak with a lawyer without delay and in private before deciding to answer any questions.”

•    “Police have a list of lawyers you may speak to for free.”

•    “These rights will continue throughout the breath or blood alcohol test procedures.”

•    “If you wish to speak to a lawyer a telephone will be made available to you for that purpose as soon as practicable. You will be allowed a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.”

•     “Would you like to speak to a lawyer?”     YES NO Comment:

•    “You are required to undergo an evidential breath test without delay.”

•    “If you fail or refuse to undergo the evidential breath test, you will be required to permit a blood specimen to be taken.” [Excerpt 1]

•    “If that blood specimen indicates the presence of alcohol, proceedings may be taken against you.”

[Excerpt 2]

•    “Whether or…

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 Hedley v Police

Details

AGLC: Hedley v Police [2022] NZHC 714
Case: [2022] NZHC 714
Decision Date: 8 April 2022

CaseChat Overview and Summary

The appellants, Mr Hedley and Mr Bulleid, appeal their convictions for driving with excess breath alcohol. They submit that they were not properly advised of their rights under the Land Transport Act 1998, and that this failure may have impeded their ability to make an informed decision to seek legal advice. The appellants argue that this impeded their right to legal advice under the New Zealand Bill of Rights Act 1990. The central issue is whether the advice given by the police to the appellants strictly complied with s 69(4A)(b) of the Land Transport Act, which requires that the police must advise the person that, if the result of a blood alcohol test indicates the presence of alcohol in the person’s blood, the person may be issued with an infringement offence notice or charged with an offence, depending on the proportion of alcohol. The court considered the advice given to the appellants and whether it conveyed the sense and effect of the warning required by s 69(4A)(b) of the Land Transport Act. The court concluded that the advice given did convey the necessary sense and effect of the statutory language, avoiding any real risk of misunderstanding, and thus strictly complied with the requirements of the Act. The court found that the advice provided to the appellants was sufficient to inform them of the potential consequences of a blood alcohol test and that there was no material gap in the advice provided. The appeals are dismissed.

Orders