King v Police - [2018] NZHC 1213

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000464

[2018] NZHC 1213

BETWEEN
JONATHAN KING

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 April 2018

Appearances:

A Haskett for Appellant J Bull for Respondent

Judgment:

28 May 2018

JUDGMENT OF VENNING J

This judgment was delivered by me on 28 May 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland Counsel: A Haskett, Auckland

KING v NEW ZEALAND POLICE [2018] NZHC 1213 [28 May 2018]

Introduction

[1] Following a defended hearing in the District Court at Auckland Mr King was found guilty of one charge of driving with excess breath alcohol contrary to s 56(1) of the Land Transport Act 1998.1 On 13 December 2017 Judge R G Ronayne fined Mr King $800 together with Court costs and disqualified him from driving for six months. Mr King lodged an appeal against conviction. Pursuant to s 107(2) of the Land Transport Act the Judge deferred the disqualification pending the determination of the appeal.

Background

[2] Mr King was stopped at an alcohol screening point on Redmond Street, Ponsonby on 20 December 2016. He failed the initial screening test and the subsequent breath test. Constable Everson required him to accompany her to the Auckland Central Police Station. There he registered a reading of 662 micrograms of alcohol per litre of breath.

[3] Constable Everson completed a breath and blood alcohol procedure sheet when dealing with Mr King. The relevant part recorded the following advice was provided to Mr King:

·The test indicates that the proportion of alcohol in your breath exceeds 400 micrograms of alcohol per litre of breath.

·You are advised that if you elect to have a blood test you may be liable to pay the blood test fee and associated medical costs whether or not the result of that blood test establishes that an offence under the Land Transport Act has been committed.

[4] Mr King signed the form to acknowledge he had received advice of the positive result of his evidential breath test together with the above advice. He was then advised:

·You have been detained for the purpose of the breath or blood test procedures for alcohol.

·You have the right to remain silent.

1 New Zealand Police v King [2017] NZDC 16451.

·You do not have to make any statement.

·Anything you say will be recorded and may be given in evidence in court.

·You have the right to speak to a lawyer without delay and in private before deciding to answer any questions.

·Police have a list of lawyers you may speak to for free.

·These rights will continue throughout the breath or blood alcohol testing procedures.

·If you wish to speak to a lawyer a telephone will be made available to you for that purpose as soon as practicable. You will be allowed a reasonable time to consult and instruct a lawyer…

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 King v Police

Details

AGLC: King v Police [2018] NZHC 1213
Case: [2018] NZHC 1213
Decision Date: 28 May 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Jonathan King appealed against his conviction of driving with excess breath alcohol, a charge that arose from his detention and subsequent testing at an alcohol screening point. The District Court had found him guilty, fined him $800, and disqualified him from driving for six months, a disqualification deferred pending the appeal. King's appeal centred on the alleged denial of his right to consult with his lawyer during the 10-minute period allowed for him to decide whether to undergo a blood test. The central legal issues were whether the police breached the Chief Justice's Practice Note on police questioning, and if so, whether the evidence obtained should be excluded as unfair. The court held that while the police did breach the Practice Note, the evidence was not obtained unfairly and should not be excluded. The breach was technical, not intentional, and the evidence did not unfairly influence King's decision or the prosecution's case. Additionally, the court found the officers' evidence more reliable than King's, who had consumed a significant amount of alcohol and was less credible in his account. The appeal was dismissed, and the disqualification took effect from midnight on 30 May 2018.

Orders