Kumar v Police - [2020] NZHC 3491

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-81

[2020] NZHC 3491

BETWEEN
DINESH KUMAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 December 2020

Appearances:

G Haszard for the Appellant

J Sutton for New Zealand Police

Judgment:

22 December 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 22 December 2020 at 10 am Registrar/Deputy Registrar
Date:

KUMAR v NEW ZEALAND POLICE [2020] NZHC 3491 [22 December 2020]

[1] The appellant, Dinesh Kumar, has appealed a decision of Judge C J Harding convicting him of driving with excess breath alcohol.

[2] In her written submissions Ms Haszard, on behalf of Mr Kumar, submitted Judge Harding erred in his assessment of the evidence in a number of respects:

(a)By treating the blood alcohol results as conclusive evidence.

(b)By taking into account the level of alcohol in the evidential breath test.

(c)By failing to follow the precedent set by Perry v Police.

(d)By placing too much weight on previous cases to determine that it would be “slim to impossible” to “…have a level of 182 milligrams within minutes of a single double shot”, and failing to take into account that Mr Kumar’s blood alcohol would have concentrated in his system by the time the test was taken.

(e)By not accepting Mr Kumar’s explanation for his glazed and bloodshot eyes.

(f)By failing to review the evidence in an impartial manner.

[3]In addition, Ms Haszard submitted a miscarriage of justice occurred because:1

(a)Judge Harding failed to provide a reasoned basis for not considering the decisions put forth by defence counsel, insofar as those decisions related to the interpretation of the blood alcohol testing procedure and results.

(b)Judge Harding interrupted the cross-examination of the key prosecution witness, Mr van Oudenaaren, on the issue of Mr Kumar’s driving.

1 Criminal Procedure Act 2011, s 232(c).

(c)Judge Harding relied on Mr Kumar’s breath alcohol level which was inadmissible, as well as the presence of slurred speech, to find the charge proved beyond a reasonable doubt.

The District Court decision

[4] In the judgment under appeal Judge Harding recorded that a member of the public, Mr van Oudenaaren, gave evidence that at about 7:15 pm on 7 December 2019, he observed a red hatchback driving erratically in front of him on Papamoa Beach Road. This vehicle belonged to Mr Kumar. Mr van Oudenaaren described the vehicle as being driven “aggressively” and crossing the centre line before pulling sharply into the domain carpark, where a block of shops and a bar were located.2 Mr van Oudenaaren continued driving on Papamoa Beach Road, but concerned about the manner in which the vehicle had been driven, called the Police and reported the vehicle’s number plate and his concerns.3 Mr van Oudenaaren then decided he should see whether the vehicle had remained parked, so returned to the domain carpark. This trip back to the carpark took approximately three to four minutes.4 Once there he parked about 25…

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 Kumar v Police

Details

AGLC: Kumar v Police [2020] NZHC 3491
Case: [2020] NZHC 3491
Decision Date: 22 December 2020

CaseChat Overview and Summary

Dinesh Kumar appeals his conviction by Judge C J Harding of driving with excess breath alcohol. Kumar's counsel, Ms Haszard, argued that Judge Harding erred in his assessment of the evidence, including treating the blood alcohol results as conclusive, relying on the breath alcohol level, and not following the precedent set by Perry v Police. Kumar also argued that a miscarriage of justice occurred because Judge Harding failed to consider the defence's interpretation of the blood alcohol testing procedure and results and interrupted the cross-examination of the key prosecution witness. The District Court found Kumar guilty based on the evidence of Mr van Oudenaarden, who witnessed Kumar driving erratically, and the breath and blood alcohol tests. Kumar claimed he had only consumed a double shot of whiskey after parking his car. The High Court found that Judge Harding was entitled to assess Kumar's credibility based on his experience and rejected Kumar's explanation as not credible. The Court also found that the final concern raised by Ms Haszard was irrelevant as the presumption in s 77 of the Land Transport Act specifically addresses the blood alcohol level that can be attributed to the defendant.

The appeal against conviction is dismissed.

Orders