Lewis v Police - [2018] NZHC 3115

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-71

[2018] NZHC 3115

BETWEEN
RUTH MARGARET LEWIS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 November 2018

Counsel:

B J Dawson for appellant D M Helm for respondent

Judgment:

29 November 2018

RESERVED JUDGMENT OF DOBSON J

[1] Following a judge alone trial, the appellant (Ms Lewis) was found guilty of a charge of driving with excess breath alcohol, contrary to the provisions of s 56(1) of the Land Transport Act 1998 (the Act).1

[2] Before Judge Hobbs, Ms Lewis had defended the charge on the narrow basis that there had been non-compliance with the requirement for the Police to afford her a 10 minute period to consider whether to undergo a blood test, and that the deficiency could not be cured under the so-called reasonable compliance provision in s 64(2) of the Act.

1 Police v Lewis [2018] NZDC 18565.

LEWIS v POLICE [2018] NZHC 3115 [29 November 2018]

Circumstances in which Ms Lewis was charged

[3] There was no oral evidence at the hearing. Instead, the arresting Police constable’s formal statement was admitted by consent, with no cross-examination. On the part of the process in issue, the constable’s statement was as follows:

21.Whilst conduct EBA procedures, I used my personal wrist watch to keep time. This is a black G-Shock Protection. It has both digital and analogue time with the analogue having both hour, and minute, hands the whole way round the watch, and the digital in a screen down the bottom. The digital screen is in 12 hour format, and includes seconds.

22.During EBA procedures, LEWIS was persistent on speeding procedures up and asking when she could go home.

23.When finishing Block K on the Breath and Blood Alcohol Procedure Sheet (POL515), the advice prior to the ten minute period, I advised LEWIS we had to wait ten minutes so she could decide whether she wanted to elect blood, I then asked her if she wanted to speak to a lawyer, she advised no, I then wrote down the time in block K, LEWIS then signed the sheet and I moved on to Block L.

24.In Block L I then wrote the time on my watch, 4:00am in the first box. During this period, LEWIS kept asking to cut the ten minute period cut short as she had already decided she did not want blood. We advised her we weren’t allowed to talk during the ten minute period. LEWIS did not follow these instructions and consistently asked when time was up.

25.After a while, I looked down at my watch and the time was 04:10. I do not remember exactly how many seconds had passed. I advised we can stop there as I advised her about the ten minute period before I asked her to sign Block K.

26.We then finished completing EBA procedures, and we gave LEWIS a lift home.

[4] On the basis of this explanation…

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: [2018] NZHC 3115
Decision Date: 29 November 2018

CaseChat Overview and Summary

The appellant, Ruth Margaret Lewis, was found guilty of driving with excess breath alcohol by Judge Hobbs in the District Court. The conviction was appealed to the High Court. The sole issue on appeal was whether the prosecution was required to provide an explanation for non-compliance with the statutory requirement for the appellant to be afforded a 10 minute period to consider whether to undergo a blood test, and if not, whether the Judge correctly found that reasonable compliance had occurred. The High Court held that there was no obligation on the prosecution to provide an explanation for non-compliance with statutory requirements. The High Court found that the Judge was entitled to accept the constable's evidence as an explanation for non-compliance and that his Honour's analysis of all relevant factors was balanced and sufficient to conclude that there had been reasonable compliance with the requisite statutory provisions. The appeal was dismissed.

The case highlights the importance of compliance with statutory requirements when conducting evidential breath alcohol tests and the need for the prosecution to provide an explanation for non-compliance in order to rely on the reasonable compliance provisions. The case also illustrates the balanced approach taken by the High Court when considering whether reasonable compliance has occurred.

Orders