Hendriks v Police - [2023] NZHC 1978

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2023-425-7

[2023] NZHC 1978

BETWEEN
WADE HANS HENDRIKS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 July 2023

Appearances:

A S P Tobeck for Appellant

R W Donnelly for Respondent

Judgment:

27 July 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 27 July 2023 at 10.15 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

HENDRIKS v NEW ZEALAND POLICE [2023] NZHC 1978 [27 July 2023]

[1] Wade Hendriks was convicted of driving with excess breath alcohol.1 He appeals this conviction on the basis that the police record of the procedure followed when administering the evidential breath test records he asked to see a lawyer, but he was not given that opportunity.

Background facts

[2] On 15 July 2022, Mr Hendriks was randomly stopped while driving on Kirkoswald Road. When an evidential breath test was administered, he was found to have 600 micrograms of alcohol per litre of breath, which exceeded the statutory limit of 400 micrograms.

[3] On 31 March 2023, Mr Hendriks was convicted in a judge-alone trial before Judge Harvey.2

[4] Mr Hendriks defended the charge, relying on the police record of the excess breath alcohol testing procedure (the EBA procedure sheet). It recorded that when Mr Hendriks was given the statutory advice about the requirement to undergo an evidential breath test, he had answered “yes” to the question “Would you like to speak to a lawyer?”.

[5] When giving evidence, the constable who administered the breath test explained that he used the electronic EBA procedure sheet on his mobile phone when processing Mr Hendriks. He acknowledged he recorded the response “yes” to that question on the second occasion it was asked, but that this was a mistake he made while completing the EBA procedure sheet on his mobile phone. The constable did not pick up the error until after the electronic form had been submitted to the police database. However, once this form has been submitted, it cannot be altered.

[6] The constable’s evidence was that at no time had the defendant asked to speak to a lawyer. He declined the offer to speak to a lawyer at all three stages when that option was offered during the testing procedure. That was consistent with his response

1 Land Transport Act 1998, s 56(1) – maximum penalty: three months’ imprisonment or a fine not exceeding $4,500.
2 Police v Hendriks [2023] NZDC 9149.

to the initial request as to whether he wanted a lawyer, and with his response to the third request (which follows the advice given prior to the 10 minute period before deciding whether to take a blood test), where he also said “no”. It was also consistent with the record in the comments section on the form where the police officer recorded that Mr Hendriks answered “no” on all three occasions when he was asked whether he wanted a…

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 Hendriks v Police

Details

AGLC: Hendriks v Police [2023] NZHC 1978
Case: [2023] NZHC 1978
Decision Date: 27 July 2023

CaseChat Overview and Summary

Wade Hans Hendriks has appealed his conviction for driving with excess breath alcohol, arguing that the police record of the procedure followed when administering the evidential breath test erroneously recorded that he asked to see a lawyer, but he was not given that opportunity. The central issue before the court was whether the police officer's explanation for the discrepancy between the record and his oral testimony was credible, and whether the trial judge was correct in accepting the explanation and convicting Mr Hendriks.

The court considered whether the trial judge had erred in his assessment of the evidence. The constable who administered the breath test testified that he had recorded the response “yes” to the question “Would you like to speak to a lawyer?” by mistake while completing the EBA procedure sheet on his mobile phone. The constable did not pick up the error until after the electronic form had been submitted to the police database. However, once this form had been submitted, it could not be altered. The constable testified that at no time had Mr Hendriks asked to speak to a lawyer, and that he declined the offer to speak to a lawyer at all three stages when that option was offered during the testing procedure.

The court found that the trial judge had carefully considered the evidence given by the constable, and had been impressed by his demeanour and honesty. The trial judge concluded that the constable had made an error and that the word “yes” was entered in error. The trial judge found the charges proved. The appeal court found that there was a rational and considered basis for the trial judge's conclusion. The appeal is dismissed.

Orders