Kennelly v Police - [2024] NZHC 2349

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2024-476-7

[2024] NZHC 2349

BETWEEN
PATRICK JAMES KENNELLY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 August 2024

Appearances:

A S P Tobeck for Appellant A-M McRae for Respondent

Judgment:

21 August 2024

JUDGMENT OF OSBORNE J

[1] Patrick James Kennelly was convicted following a trial in the Timaru District Court before Judge Savage on a charge of driving with excess blood alcohol content under the Land Transport Act 1998 (the Act).1

[2]The appellant appeals against his conviction.

Facts

[3]The following are the facts as found by the Judge.

[4] At about 8.01 pm on Saturday 25 March 2023, the appellant was driving on the Fairlie-Tekapo Road. The appellant’s headlights were not on. He was stopped and spoken to by Constable Wright.

1 Police v Kennelly [2024] NZDC 4136: Land Transport Act 1998, s 56(2) — maximum penalty three months’ imprisonment or $4,500 fine.

KENNELLY v POLICE [2024] NZHC 2349 [21 August 2024]

[5] The appellant was unable to provide a breath sample sufficient for analysis, despite his making 18 attempts. At 8.38 pm, the Constable advised him that, having an incomplete breath test, he was going to be detained for a blood test. The appellant did not wish to speak to a lawyer and signed an acknowledgement to that effect at 8.39 pm.

[6] The Constable was aware no suitable medical personnel were available in Tekapo. He required the appellant to accompany him to the Fairlie police station. The Constable held a list of the doctors and other practitioners who could assist with taking blood samples. The list included people at Fairlie but not at Geraldine.) The Constable attempted to arrange the attendance of one of two Fairlie doctors who customarily take blood samples at Fairlie. Neither were available. Similarly, two nurses the Constable tried to arrange to take a blood sample were also unavailable.

[7] The Constable contacted the Timaru Police station. He received no answer. He contacted Timaru Hospital and was told a specimen could be taken there. He formed the view that the nearest practical avenue for the taking of a blood specimen was in Timaru.

[8] The Constable required the appellant to accompany him to Timaru for his blood to be sampled. The appellant consented to this at 9.13 pm.

[9] On a number of occasions during their time together, the Constable had to make provision for the appellant to relieve himself. This continued on the journey to Timaru as the appellant required two more comfort stops on a journey of less than one hour.

[10] Upon arrival at Timaru Hospital, an attempt was made to take blood from the appellant after his consent had been obtained. The first nurse was unable to take sufficient blood from the appellant for analysis.2

2 I refer in this judgment to the “first nurse”. Mr Tobeck, for the appellant, although repeatedly referring in his written submissions to the “first nurse”…

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: [2024] NZHC 2349
Decision Date: 21 August 2024

CaseChat Overview and Summary

Patrick James Kennelly appeals against his conviction in the Timaru District Court for driving with excess blood alcohol content under the Land Transport Act 1998. The central issue of the appeal is the admissibility of a blood sample obtained from the appellant by police. The appellant argues that his detention was arbitrary and longer than reasonably necessary, and that the blood sample was not taken in accordance with normal medical procedures. The police counter that the detention was lawful, the blood sample was correctly obtained, and its admissibility was justified under the Evidence Act 2006.

The court found that the time taken to transport the appellant to Timaru Hospital for the blood sample did not render his detention arbitrary or longer than reasonably necessary. The court rejected the appellant's submission that the Executive should have ensured a medical practitioner was available sooner. The court also found that the blood sample was taken in accordance with normal medical procedures, despite the initial unsuccessful attempts by the first nurse. The appellant's argument that the police should have called the first nurse as a witness was rejected. The court determined that the chain of custody of the blood sample was sufficient to guarantee its integrity, and the admission of the blood sample evidence was justified under the Evidence Act. Consequently, the appeal was dismissed.

Orders