Keenan v Attorney-General - [2015] NZHC 181

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-330 [2015] NZHC 181

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF

decisions regarding the use of the Drager Model 9510NZ breath alcohol testing device

BETWEEN

ANDREW RICHARD KEENAN Plaintiff

AND

ATTORNEY-GENERAL Defendant

Hearing:
16 February 2015

(On the papers)

Counsel:

C Persson for Plaintiff
K Ericson for Defendant

Judgment:

16 February 2015

JUDGMENT OF MANDER J

[1] On 30 November 2014, the plaintiff discontinued his proceeding challenging the police’s use of a breath alcohol device. The plaintiff was the subject of a blood alcohol prosecution in the District Court in which the breath alcohol device had been used prior to his election to have a blood test. The defendant seeks costs in the wake of the discontinuance.

[2] Pending the hearing of the judicial review application, the plaintiff made application for interim relief, seeking a declaration in this Court that the police ought not continue with the prosecution until the proceeding in this Court had been determined. I took the view that in the absence of an application to the District Court seized of the prosecution to adjourn the hearing of the charge, it was
premature to be making an application for relief to this Court. In the event, the

KEENAN v ATTORNEY-GENERAL [2015] NZHC 181 [16 February 2015]

District Court was amenable to a stay of the criminal proceeding until the judicial review application could be determined.

[3] The plaintiff’s challenge relied upon a document drafted by the defendant entitled Request for Proposal – TN/08/08 (tender document). This document invited manufacturers and suppliers to submit tenders to supply police with breath testing devices. Under the heading “Tender Response Requirements” the document listed what was described as mandatory criteria including certain software requirements. As part of those requirements it stated that the evidential breath test result must be displayed by the testing device in a certain way and the printout take a particular form. It was the plaintiff’s case that the printout obtained from the device at the time he was the subject of an evidential breath test did not comply with these requirements.

[4] The plaintiff claimed that the mandatory requirement set out in the tender document created a legitimate expectation on his part that the printout obtained when the device was used would be consistent with the requirements set out in that document. The plaintiff in his pleadings described the requirements as “mandatory operational requirements”. The plaintiff pleaded that the decision to use the testing device to conduct the breath test was “flawed or invalid or unauthorised”. Further, that the decision to initiate and continue the prosecution was likewise invalid. Similar allegations were made under the heading of mistake of fact, alleging that the defendant failed to recognise the use of the breath testing device was non-compliant with the so-called “applicable mandatory operational requirements”. It was claimed that no reasonable prosecuting authority in the position of the defendant would act in reliance upon the device, and…

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 Keenan v Attorney-General

Details

AGLC: Keenan v Attorney-General [2015] NZHC 181
Case: [2015] NZHC 181
Decision Date: 16 February 2015

CaseChat Overview and Summary

The case of Keenan v Attorney-General involved a plaintiff, Andrew Richard Keenan, who had discontinued his proceeding against the Attorney-General, who was representing the defendant in this case. The plaintiff had initially challenged the use of a breath alcohol testing device by the police in a blood alcohol prosecution. The defendant sought costs following the discontinuance of the proceeding. The plaintiff had applied for interim relief to declare that the police should not continue with the prosecution until the judicial review application was determined. However, the court found that it was premature to make such an application without an application to the District Court to adjourn the hearing of the charge.

The legal issues in this case included whether the tender document, which listed mandatory criteria for the breath alcohol testing device, created a legitimate expectation on the part of the plaintiff that the printout obtained when the device was used would be consistent with the requirements set out in that document. The plaintiff also claimed that the decision to use the testing device to conduct the breath test was flawed or invalid or unauthorised, and that the initiation and continuation of the prosecution amounted to an abuse of process.

The court found that the plaintiff's challenge was speculative and misconceived. The plaintiff's case rested entirely on the proposition that the requirements included by the police in its tender document irrevocably prescribed the mandatory requirements of how any device ultimately chosen must function. However, the evidential breath testing device in question had already been approved for the purpose of evidential breath tests by the Minister of Police. The court also found that the plaintiff's application for discovery was a "fishing expedition" which was neither focused upon, nor appropriately referable to the allegations as pleaded.

The court awarded costs on a 2A basis, in the sum of $7,263.50 and disbursements in the sum of $1,214.27, in accordance with the schedule annexed to the defendant's memorandum of 28 November 2014. The plaintiff's application for an award of costs in respect of his application for discovery was declined. The court also declined to make any award of costs in respect of the plaintiff's discovery application. The plaintiff's challenge was categorised as involving a matter of public interest litigation, but the court found that the proceeding never realistically raised issues of merit capable of being considered matters of genuine public interest.

Orders