Hibbert v Police - [2014] NZHC 2094

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-103 [2014] NZHC 2094

BETWEEN
PAUL HIBBERT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 September 2014

Counsel:

ZE Reid for Appellant
L Mills for Respondent

Judgment:

1 September 2014

JUDGMENT OF BREWER J

Solicitors/Counsel: Zoe Reid (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

HIBBERT v POLICE [2014] NZHC 2094 [1 September 2014]

Introduction

[1] Mr Hibbert appeals his conviction in the District Court at North Shore by Judge Roy Wade on 1 May 2014 on a charge of driving with excess blood alcohol. Mr Hibbert no longer protests sentence.

Issues

[2] The issue is:

Has there been a breach of the procedure leading to the taking of the evidential blood sample such that the result of the testing of the blood sample should be ignored?

Has there been a breach of the procedure leading to the taking of the evidential blood sample such that the result of the testing of the blood sample should be ignored?

[3] In New Zealand, it is an offence to drive while intoxicated. The law defines what it means to be intoxicated by reference to a breath alcohol limit and a blood alcohol limit. A person who is found, by an evidential breath test, to exceed the prescribed limit is entitled to have his or her blood tested as a control measure.

[4] In order to ensure that people’s rights are protected, and to nevertheless provide for a workable process, the legislation is quite specific on what procedures must be followed in order to gain evidence sufficient to found a conviction.

[5] Unfortunately, this has given rise to a kind of legal game. A person is stopped, an evidential breath sample is taken and perhaps an evidential blood sample is taken. A prosecution results. The person who is charged goes to a lawyer and is advised there might be a technical defence. The argument which results is not that the person charged was not driving while intoxicated but that, due to a technical breach of the procedure, the prosecution should not be allowed to prove it.

[6] This is such a case.

[7] The law1 provides that if the result of a person’s evidential breath test appears to be positive, the person has the right, within 10 minutes of being advised of the implications of a positive test, to elect to have a blood test to assess the proportion of alcohol in his or her blood.

[8] There is a lot of case law around the 10 minute period. A lot can happen in

10 minutes. But the purpose of the 10 minute period is to allow an individual that period of time without undue pressure and without undue interruption to make his or her decision.

[9] In this case, the chronology goes like this:

10:31 pmMr Hibbert was stopped at a checkpoint. A sniffer test indicated alcohol. He was advised of his legal rights. Mr Hibbert then spoke to his lawyer by telephone…

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.

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Details

Case: [2014] NZHC 2094
Decision Date: 1 September 2014

CaseChat Overview and Summary

In the case of Hibbert v Police, the appellant, Mr. Hibbert, sought to appeal his conviction for driving with excess blood alcohol. Mr. Hibbert had been stopped at a checkpoint and subjected to a sniffer test which indicated the presence of alcohol. He was subsequently provided with an evidential breath test, the result of which indicated that he had 763 micrograms of alcohol per litre of breath. He was then advised of his legal rights, including the right to a blood test to assess the proportion of alcohol in his blood. Despite a brief interruption, Mr. Hibbert was given a period of 10 minutes to make his decision regarding the blood test, which he elected to take. The appellant argues that the procedure leading to the taking of the blood sample was flawed, such that the result of the testing of the blood sample should be disregarded. The central issue before the court was whether there had been a breach of the procedure leading to the taking of the evidential blood sample such that the result of the testing of the blood sample should be ignored.

The court found that there had been no breach of the procedure leading to the taking of the evidential blood sample, and therefore the result of the testing of the blood sample was not to be ignored. The court held that the 10 minute period had been interrupted, but Mr. Hibbert was given an uninterrupted period of at least 10 minutes, from 11:21 pm until 11:33 pm, to consider whether he wished to request a blood test. The court further found that, objectively, and taking into account the whole of the circumstances, including the fetching of the cigarettes and the advice received from his lawyer, there was no reason to infer that the events leading up to the decision to elect a blood test imposed undue pressure on Mr. Hibbert, nor that he made a decision he would not otherwise have made. The court dismissed the possibility of panic and held that what amounts to undue pressure has to be seen in the context of the undoubtedly difficult emotional situation a stopped motorist experiences.

In conclusion, the appeal was dismissed, and the conviction of the appellant was upheld. The court found that the District Court Judge had not erred in his assessment of the evidence to such an extent that a miscarriage of justice had occurred. The court held that the breath alcohol provisions should not be considered to be a legislative code under which a procedural error should lead to automatic exclusion, and that broadly worded provisions militate against any such argument. The court further held that drinking and driving is dangerous, illegal and socially irresponsible, and that Parliament has legislated to ensure that those drivers who do drink and drive cannot escape responsibility through technical and unmeritorious defences. The courts must give full effect to that clear parliamentary intention.

Orders