Jovanovic v Police - [2014] NZHC 1187

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-382 [2014] NZHC 1187

BETWEEN
ALEKSANDAR JOVANOVIC

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 April 2014

Counsel:

A J Haskett for the Appellant
B Hamlin for the Respondent

Judgment:

30 May 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 30 May 2014 at 10 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, Auckland
Legal Defence Service Ltd, Auckland

JOVANOVIC v POLICE [2014] NZHC 1187 [30 May 2014]

Introduction

[1] The appellant appeals against his conviction by District Court Judge Wade in the North Shore District Court on 16 December 2013 on one charge of driving with excess blood alcohol, an offence against s 56(2) of the Land Transport Act 1998. The appeal concerns the manner in which the hearing was conducted. In particular the appellant argues that he did not get a fair trial because the Judge declined his request for a stay of the proceeding and that, in doing so, the Judge made observations which gave the appearance of pre-determination at the hearing.

Relevant facts

[2] On 5 October 2012 the appellant was driving on East Coast Road when he was stopped at a checkpoint. He failed a roadside screening test and was given an evidential breath test. He then elected to have a blood test. Upon analysis his blood was shown to contain 105 mgs of alcohol. The blood specimen was taken by a nurse in what is colloquially known as a “booze bus” which was parked at a location close to the checkpoint.

[3] Almost one year later on 24 September 2013 the appellant’s counsel made a disclosure request under the Criminal Disclosure Act 2008 (“the Act”) for the following information:

(1) Site sheet, offender details sheet and checkpoint data form or similar;

(2)Names and addresses of other police members on the booze bus on the night in question, as they are potential witnesses, together with copies of their notebook entries;

(3)Names and addresses of other motorists processed on the booze bus on the night in question, as they are potential witnesses;

(4)Procedure sheets for other motorists processed on the booze bus on the night in question, as they are material to the procedures adopted by police;

(5) Employment contract for the nurse;

(6)Emails, letters and other correspondence with or between any person about this matter; and

(7)Material codes of conduct, guidelines, annuals (sic), operational orders and general and specific instructions or advice including those issued by email or loaded on to the Police intranet.

[4] On 7 October 2013 the Police Criminal and Justice Support Unit (CJSU)

responded and:

(a) declined to provide items 1, 4, 5, 7 on the grounds they were not relevant;

(b)provided the names of the officers on the booze bus that night, in accordance with item 2, but declined to provide notebook entries on the basis no entries were made that were relevant;

(c) declined to provide item 3 on…

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 Jovanovic v Police

Details

AGLC: Jovanovic v Police [2014] NZHC 1187
Case: [2014] NZHC 1187
Decision Date: 30 May 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Aleksandar Jovanovic appeals against his conviction for driving with excess blood alcohol. Jovanovic contends that the District Court did not grant a fair trial because it declined his request for a stay of proceedings and made observations that suggested pre-determination. The appeal raises several legal issues including whether the information sought under the Criminal Disclosure Act 2008 was relevant, if there was a miscarriage of justice, and whether the hearing was unfair due to an appearance of pre-determination. The court found that the information sought was not relevant under the Act, and therefore, the District Court's decision to deny the stay was appropriate. The court also determined that there was no miscarriage of justice, as the withheld information did not significantly impact the trial. Furthermore, the court concluded that the comments made by the District Court did not constitute pre-determination, as the evidence of the blood sample results would likely be admitted regardless. Therefore, the appeal was dismissed.

Orders