Heger v Police

[2007] NZCA 102

IN THE COURT OF APPEAL OF NEW ZEALAND

CA473/06
[2007] NZCA 102

BETWEENJOHN ALEXIS HEGER

Applicant

ANDNEW ZEALAND POLICE

Respondent

Hearing:12 March 2007

Court:Hammond, Arnold and Wilson JJ

Counsel:W M Johnson for Applicant

S B Edwards for Respondent

Judgment:29 March 2007 at 10 am

JUDGMENT OF THE COURT

The application for special leave to appeal to this Court is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wilson J)

Introduction

[1]       The applicant seeks special leave to appeal to this Court pursuant to s 144(3) of the Summary Proceedings Act 1957 on the following two questions of law:

(i)Can the Commissioner (of Police) delegate his responsibility under s 75A of the Land Transport Act 1998 to authorise a person to certify that a certificate is a true copy of a certificate of compliance under that section?

(ii)Whether, when the prosecution elects to prove in a breath/blood alcohol prosecution a matter which may have been proved by a certificate pursuant to s 75(5) of the Land Transport Act, they have to prove all of the matters that are ordinarily proved by the certificate?

[2]       The application was lodged outside the 21 days allowed by s 144(3) but, because the delay was less than two weeks and was explained, the Crown did not oppose an extension of time for the filing of the application.  We therefore extended time accordingly.

The background

[3]       The applicant was convicted in the Nelson District Court on 20 March 2006 on a charge of driving with excess blood alcohol and a further charge of driving with excess breath alcohol.  The applicant appealed to the High Court but, in a judgment issued on 30 June last year, Miller J dismissed the appeal: HC NEL CRI 2004-042-2886 6 June 2006.

[4]       The applicant sought leave from the High Court to appeal to this Court on two questions of law but, in a judgment delivered on 6 September last year, Ronald Young J dismissed that application.

The test under s 144(3)

[5]       The requirements of s 144 are well settled.  They include, in the words of this Court in Candy v Auckland City Council CA371/02 25 February 2003, the requirement that the Court:

… will require to be satisfied that there is a tenable argument available on the question of law raised. 

The first question

[6]       Having received written submissions and heard oral argument from both counsel, we are in no doubt that the proposed question is not even seriously arguable.  

[7] Section 4(3) of the Police Act 1958 provides that:

Each Deputy Commissioner shall have and may exercise such of the powers, authorities, duties, and functions of the Commissioner as the Commissioner may delegate to that Deputy Commissioner either generally or in any particular case.

[8]       In Johnson v Police CA36/98 11 May 1998 this Court held that the Police Act should not be read subject to the Land Transport Act. Section 4(3) therefore has application in the present case.

[9] Even if s 4(3) were not available, s 14 of the Interpretation Act 1999 would apply. That section reads:

A power conferred on the holder of an office, other than a Minister of the Crown, may be exercised by the holder’s deputy lawfully acting in the office.

[10]     It follows that the Commissioner may delegate his responsibility under s 75A.

The second question

[11]     We are equally clear that there is not even a tenable argument open to the applicant on this question.

[12]     The question arises out of an argument for the applicant that there was no evidence as to the proper receipt of the blood sample at the ESR by an “approved person” on a specified day and that the sample bottles were inadequately sealed.

[13]     The District Court Judge found, and Miller J upheld on appeal, that oral evidence given at the hearing established that the sample bottles had been and remained sealed and also established delivery of the samples sufficient for chain of evidence purposes.  It is not now open to the applicant to challenge those concurrent findings of fact.

[14]     In the alternative, Miller J upheld the finding of the District Court Judge that the reasonable compliance provision in s 64(2) of the Land Transport Act would apply.

[15]     It seems to us that the key point here is that the prosecution elected, as it was fully entitled to, to prove compliance with the statutory procedures through viva voce evidence.  The prosecution may invoke the certificate procedure, but it is not obliged to.  The requirements of s 75(5) are of no relevance in a situation where, as here, the prosecution does not seek to rely on the certificate.

[16]     It must follow that there is not even a tenable argument that the prosecution was required to prove all of the matters that it would have been required to prove if it had elected to rely on a certificate.

Decision

[17]     The application for special leave to appeal is therefore dismissed.

Solicitors:
W M Johnson, Wellington for Applicant
Crown Law Office, Wellington