Kelly v Police - [2017] NZHC 1611

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2017-406-000007 [2017] NZHC 1611

BETWEEN
SVEN GORDON TROY KELLY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 10 July 2017 (at Nelson)

Counsel:

R A Harrison for Appellant
K B Bell for Respondent

Judgment:

12 July 2017

JUDGMENT OF COLLINS J

Introduction

[1] After crashing his motor vehicle and fleeing the scene Mr Kelly was tracked down by a police dog and police officers and eventually arrested. He was informed of his rights under the New Zealand Bill of Rights Act 1990 (the NZBORA), including his right to consult and instruct a lawyer without delay, and was then assisted to a patrol car. At about this point Mr Kelly complained of pain in his lower left leg.

[2] A passive breath test was administered which showed Mr Kelly had been drinking alcohol. He refused to undergo a breath screening test and was therefore required to go to the Nelson Police Station. On the way to the Police Station Mr Kelly repeatedly complained of pain in his left leg and asked to be taken to hospital. He repeated this request at the Police Station but later asked to be taken to
his mother’s home.

KELLY v NEW ZEALAND POLICE [2017] NZHC 1611 [12 July 2017]

[3] At the Police Station Mr Kelly was limping on occasions and he grimaced. He was assisted by police to the charge room and then the evidential breath testing room. He was again informed of his rights and this time he signed a form acknowledging he did not wish to consult a lawyer. He then completed an evidential breath test which produced a reading of 766 micrograms of alcohol per litre of breath. He was given the opportunity to submit to a blood test but elected not to do so. Mr Kelly was then taken to his mother’s home, very near Nelson Hospital. She took him to the Hospital, where he was found to have a fracture in a bone in his left ankle. Mr Kelly was discharged from hospital after medical staff applied a partial cast to his left foot.

[4] Mr Kelly was charged with dangerous driving1 and driving with excess breath alcohol on a third or subsequent occasion.2 He pleaded guilty to the dangerous driving charge and was convicted of driving with excess breath alcohol on a third or subsequent occasion by Judge A A Couch on 18 January 2017.3 Mr Kelly was subsequently sentenced to three months’ home detention and disqualified for one year and one day in relation to the driving offences.

[5] Mr Kelly now appeals his conviction in relation to the driving with excess breath alcohol charge, on the basis that Judge Couch erred when he admitted into evidence the result of the breath screening test.

[6] The gravamen of the argument on appeal is that the breath screening test result was improperly obtained within the meaning of s 30(5) of the Evidence Act
2006 and was otherwise not admissible having…

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: [2017] NZHC 1611
Decision Date: 12 July 2017

CaseChat Overview and Summary

Sven Gordon Troy Kelly crashed his car and fled the scene. He was later arrested by police and informed of his rights under the New Zealand Bill of Rights Act 1990. Kelly was taken to the police station where he was asked to undergo a breath screening test. Kelly refused and was taken to hospital where he was found to have a fractured ankle. Kelly was charged with dangerous driving and driving with excess breath alcohol on a third or subsequent occasion. Kelly appealed his conviction in relation to the driving with excess breath alcohol charge, arguing that the breath screening test result was improperly obtained and should not have been admitted into evidence.

The legal issues the court had to decide were whether the breath screening test result was improperly obtained and whether it was admissible under the Evidence Act 2006. The court examined whether the result was obtained "in consequence" of a breach of the New Zealand Bill of Rights Act 1990 or otherwise unfairly. The court also considered whether the exclusion of the improperly obtained evidence was proportionate to the impropriety under the balancing test prescribed in the Evidence Act.

The court concluded that the breath screening test result was obtained "in consequence" of the breach of Kelly's right to be treated with humanity and respect under the New Zealand Bill of Rights Act 1990. However, the court found that the seriousness of Kelly's offending and the inadvertent nature of the police impropriety outweighed the factors that favoured the exclusion of the evidence. The court held that the breath screening test result was admissible in the prosecution of Kelly.

The appeal was dismissed and Kelly's conviction was upheld. The court ordered that Kelly pay the respondent's costs of the appeal.

Orders