Hurst v Police - [2013] NZHC 1128

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-000046 [2013] NZHC 1128

BETWEEN GRAHAM CRAIG HURST Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 16 April 2013

Appearances: A J Haskett for the Appellant
J E Tarrant for the Respondent

Judgment: 17 May 2013

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on 17 May 2013 at 10 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:
A J Haskett, Legal Defence Service, Auckland. Email:lawyer@legaldefence.co.nzE J E Tarrant, Crown Solicitor, Hamilton. Email: jet@almaodouch.co.nz

HURST V NEW ZEALAND POLICE HC HAM CRI-2011-419-000046 [17 May 2013]

Background

[1] In August 2010, in the early hours of Sunday morning, the appellant was driving a motor vehicle in the town of Whitianga. He drove past a police officer standing in the middle of the road who was holding a torch to wave down traffic at a traffic alcohol checkpoint. The appellant drove past the police officer without stopping. He was followed by a police patrol car, which turned on its flashing lights, and was stopped.

[2] The police officer observed that the appellant had bloodshot eyes and slurred speech. He admitted that he had been drinking. Alcohol was found on his breath when he spoke into the Draeger breath testing device. He then failed a breath screening test.

[3] The appellant was taken to the Whitianga Police Station and subjected to the normal formalities and testing. When he blew into the approved evidential breath test machine, the result was 822 micrograms of alcohol per litre of breath – over twice the permissible limit.

[4] The police officer then gave the appellant the appropriate advice, including telling him he had a ten minute period during which he could decide whether he wanted a blood sample to be taken and analysed. The appellant almost immediately said he wanted a blood sample to be taken.

[5] An approved medical officer arrived at the Whitianga Police Station and drew blood from the appellant. This was duly despatched to the ESR for analysis. The subsequent analysis of the appellant’s blood showed that it contained 213 milligrams of alcohol per 100 millilitres of blood – well in excess of the permitted limit of 80 milligrams.

[6] The appellant was charged under s 56(2) of the Land Transport Act 1998 (the Act) with driving a motor vehicle whilst the proportion of alcohol in his blood exceeded the 80 milligram/100 millilitres limit. He pleaded not guilty. At a defended hearing in the Hamilton District Court in March 2011, he was convicted by

Judge Spiller who subsequently disqualified him from holding or obtaining a driver’s licence for seven months and fined him $1,000.1 The appellant appealed and the Judge deferred disqualification pending the appeal.

[7] For reasons which have not been satisfactorily explained, but which were probably in part attributable to administrative confusion in the office of the barrister who represented the appellant at the hearing, this appeal was not heard until two years after the…

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 Hurst v Police

Details

AGLC: Hurst v Police [2013] NZHC 1128
Case: [2013] NZHC 1128
Decision Date: 17 May 2013

CaseChat Overview and Summary

The appeal in Hurst v Police was brought by the appellant, Graham Craig Hurst, against his conviction in the Hamilton District Court of driving a motor vehicle while the proportion of alcohol in his blood exceeded the permitted limit of 80 milligrams per 100 millilitres. Hurst was caught driving past a police officer at an alcohol checkpoint, and after failing a breath screening test, he was subjected to further testing at the Whitianga Police Station. The subsequent analysis of Hurst's blood showed that it contained 213 milligrams of alcohol per 100 millilitres of blood. Hurst was charged under s 56(2) of the Land Transport Act 1998 and pleaded not guilty. The appeal focused on three technical points raised by Hurst's counsel: (a) the blood sample taken from the appellant was obtained contrary to s 72(4) of the Act; (b) the prosecution failed to prove that the enforcement officer delivered the two parts of the blood specimen to the ESR in compliance with s 74(3) of the Act; and (c) the prosecution failed to prove that the blood alcohol analysis was carried out on a blood sample taken from the appellant, or that the analysed blood exceeded the legal limit.

The court examined each of the grounds of appeal in turn. Regarding the blood sample taken contrary to s 72(4) and s 75(2) certification, the court found that there had been carelessness on the part of the nurse who took the sample and the police officer who completed the certificate. However, the court was satisfied that the error did not raise a reasonable doubt or risk of injustice or unfairness. The court also found that there had been sufficient compliance with s 74(3) of the Act, as there was evidence that the two blood samples were sent to the ESR and arrived on 1 September 2010. Finally, the court found that the prosecution had proved beyond reasonable doubt that the excess blood alcohol level recorded in a specimen of blood related to blood actually extracted from the appellant, despite discrepancies in the appellant's address and occupation on the medical officer's certificate.

In conclusion, the court found that there were no proper grounds for interfering with the conviction entered against the appellant by Judge Spiller in the Hamilton District Court on 23 March 2011. The appeal was dismissed, and Hurst must make arrangements to serve out the period of disqualification and pay the fine imposed.

Orders