Jackson v Police

[2012] NZHC 3152

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2011-442-0000020 [2012] NZHC 3152

EDWIN JOSEPH JACKSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 November 2012

Counsel:         E L McGuinniety for Respondent

No appearance for Appellant

Judgment:      23 November 2012

I  direct  that  the  delivery  time  of  this  judgment  is  4.30pm  on  the  23rd   day  of

November 2012.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The appellant appeals against his conviction, following a defended hearing before Judge Zohrab on 8 August 2012, on a charge that he committed an offence against s 60(1)(a) of the Land Transport Act 1998 (the Act) in that he did refuse to permit a blood specimen to be taken after having been required to do so under s 72 of the Act by an enforcement officer.

[2]      The notice of appeal was filed on 4 September 2012, and the hearing was set down for 21 November.   When the appeal was first called, the appellant was not

JACKSON V NEW ZEALAND POLICE HC NEL CRI-2011-442-0000020 [23 November 2012]

present.   I stood the hearing down until 11.45am while other matters were heard. When the matter was recalled at 11.45am Mr Jackson was not present.   In those circumstances, I heard from counsel for the respondent and reserved my decision to consider the papers in detail and deliver a reasoned judgment.

[3]      The notice of appeal does not set out the grounds of appeal.  It simply asserts that the decision was wrong in fact and in law. There are three matters which need to be addressed as possible grounds of appeal, appearing from the Judge’s comprehensive oral judgment delivered on 8 August 2012.

[4]      The first is that the charge was amended at the close of the prosecution case. Initially, it had alleged that the offence was a third or subsequent offence.   No evidence was led of prior convictions so the Judge amended it to a first or second charge.  I am satisfied that that amendment was appropriate.  That provides no basis for an appeal.

[5]      The second possible ground was raised in a submission of no case to answer at the conclusion of the prosecution case, namely that the prosecution had failed to produce a copy of the incomplete evidential breath test.  The Judge held that there was no requirement on the prosecution to do so in law and he dismissed that application.   That too was an appropriate decision by the Judge, and provides no basis for an appeal.

[6]      The third matter to be considered is the case advanced for the defence, at trial, namely that there had been no improper refusal to supply a sample, because the appellant had not had a proper opportunity to consult a lawyer.   The appellant’s evidence was that he had advised the constable that he wished to contact a Christchurch lawyer, and that he gave the constable the name of that lawyer.  The Judge said of this defence:[1]

[1] New Zealand Police v Jackson DC Nelson CRI-2011-042-001269, 8 August 2012 at [7]-[8].

If  I  accept  what  the  defendant  says,  because  the  law  is  pretty  clear,  a constable in the situation that Constable Booth was in is not able to ride roughshod over his rights in the manner contended by the defendant. If a defendant makes a request to speak to a lawyer and names a lawyer, a police officer has got to make some reasonable attempts to obtain that lawyer,

rather than saying no and giving him a list of local lawyers. So if I accept what the defendant says, then the charge would be dismissed because there would have been failure to comply with the basic obligations under the Bill of Rights.

If, having heard what the defendant says about that particular point, I do not accept it entirely but cannot reject it out of hand, you should be given the benefit of the doubt. But if I reject his explanation, I should not conclude that he is guilty. I should put his explanation to one side, look at the evidence that I think that I can rely upon, and ask myself, have the prosecution proven his guilt to that high standard of proof, beyond reasonable doubt?

[7]      The Judge then went on to discuss the evidence.  He found that the appellant had not told the constable the name of the lawyer he wished to speak to and “it was just simply he wanted to speak to his lawyer and there was no suggestion at all of who that lawyer was”.[2]

[2] At [16].

[8]      That was a finding of fact that was clearly open to the Judge and could not be disturbed on this appeal.  The paragraphs I have quoted from the Judge’s decision clearly show that he applied the correct legal test.  There is no basis for an appeal on this point.

[9]      The appeal is dismissed.

“A D MacKenzie J”

Solicitors:         O’Donoghue Webber, Nelson for Respondent

Copy to:           Mr Jackson