Kennelly v Police - [2025] NZCA 68

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA610/2024
[2025] NZCA 68

BETWEEN	PATRICK JAMES KENNELLY Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Palmer, Peters and Edwards JJ
Counsel:	A S P Tobeck for Applicant B F Fenton for Respondent
Judgment: (On the papers)	21 March 2025 at 3 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

Following a judge-alone trial before Judge Savage in early 2024, Mr Kennelly was convicted of driving with excess blood alcohol, an offence pursuant to s 56(2) of the Land Transport Act 1998 (the Act).[1]
[1]Police v Kennelly [2024] NZDC 4136.
Osborne J dismissed Mr Kennelly’s appeal to the High Court on 21 August 2024.[2]
[2]Kennelly v Police [2024] NZHC 2349 at [103].
Mr Kennelly now seeks leave to bring a second appeal against conviction. On 15 October 2024, Mallon J directed that the application for leave be heard separately from the substantive appeal and that it should be determined on the papers.
This Court must not grant leave to bring a second appeal against conviction unless satisfied that:[3]
(a)the appeal involves a matter of general or public importance, such as an issue of “general principle or of general importance in the administration of the criminal law by the courts”;[4] or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[3]Criminal Procedure Act 2011, s 237(2).
[4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36], citing Keenan v R [2005] NZSC 63 at [5].
The issue that Mr Kennelly proposes should be argued on appeal is whether, on a charge of driving with excess blood alcohol, the prosecution is required to prove that the blood specimen was “taken in accordance with normal medical procedures” or, if not, whether the prosecution is bound to do so once the defence has put the point in issue.[5]
[5]Land Transport Act 1998, s 2.
Mr Tobeck, counsel for Mr Kennelly, submits the proposed appeal satisfies both requirements at [4] above.
The respondent opposes leave. It contends neither ground on which leave may be granted is established.

Background

At 8.01 pm on 25 March 2023, Mr Kennelly was driving on Fairlie‑Tekapo Road in Canterbury. He did not have his headlights on. Constable Wright stopped Mr Kennelly, and administered a breath screening test which Mr Kennelly failed.
Constable Wright then required Mr Kennelly to undergo an evidential breath test. Despite numerous attempts, Mr Kennelly was unable to complete the test.
Constable Wright then advised Mr Kennelly that he would be detained for the taking of a blood specimen.
Unable to arrange for that specimen at the local police station, Constable Wright required Mr Kennelly to accompany him to Timaru Hospital.
At the hospital, a nurse made three unsuccessful attempts to take the specimen, before asking another nurse to try. That nurse then took 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.

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Details

Case: [2025] NZCA 68
Decision Date: 21 March 2025 at 3 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an application by Patrick James Kennelly, who sought leave to bring a second appeal against his conviction for driving with excess blood alcohol, contrary to section 56(2) of the Land Transport Act 1998. The initial conviction was handed down by Judge Savage in a judge-alone trial earlier in 2024, and an appeal to the High Court was subsequently dismissed by Osborne J. The current application for leave to appeal was to be determined solely on the papers, following a direction by Mallon J. The central legal issue before the Court was whether the prosecution must prove that a blood specimen was taken in accordance with normal medical procedures when charging someone with driving with excess blood alcohol. Alternatively, if such proof is not required, whether the prosecution must address this point once it has been raised by the defence.

The Court examined the statutory provisions and relevant case law, noting that a blood specimen taken with a needle and syringe is generally accepted as being taken in accordance with normal medical procedures. Prior unsuccessful attempts to obtain a specimen do not invalidate a subsequently taken specimen. The Court found that the prosecution had sufficiently established the elements of the offence by presenting evidence from Constable Wright and the nurse who obtained the specimen, as well as the analysis of the specimen. The Court concluded that the proposed appeal did not raise an important question of law with broad application, nor did it suggest any prospect of a miscarriage of justice if the appeal were not heard. Consequently, the application for leave to bring a second appeal was declined.

The Court of Appeal's decision to decline the application for leave to bring a second appeal means that Patrick James Kennelly's conviction for driving with excess blood alcohol stands. No further appeals will be permitted on the matter unless exceptional circumstances arise that warrant a review by a higher court.

Orders