Mabee v Police - [2017] NZCA 570

IN THE COURT OF APPEAL OF NEW ZEALAND

CA533/2017
[2017] NZCA 570

BETWEEN	VAUGHAN GROSVENOR MABEE Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Winkelmann, Venning and Duffy JJ

Counsel:

ASP Tobeck for Applicant
Z A Fuhr for Respondent

Judgment:

(On the papers)

7 December 2017 at 10.30 am

JUDGMENT OF THE COURT

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

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Mr Mabee seeks leave to bring a second appeal against his conviction for driving with excess blood alcohol, his first appeal having been dismissed by Dunningham J.[1]
[1]Mabee v Police [2017] NZHC 2015.
Before granting leave to bring a second appeal this Court must be satisfied either that:[2]
(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;[3] or
(b)a miscarriage of justice may have occurred or may occur unless the appeal is heard.
[2]Criminal Procedure Act 2011, s 237.
[3]See McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37].
Mr Mabee argues that both grounds support his application. The respondent opposes the grant of leave.

Background

In November 2015 Mr Mabee was involved in a car accident. Although he left the scene, police found him some time later at his employer’s home. The police administered a screening breath test to him, which indicated that he was over the legal limit. Mr Mabee was asked to accompany police to the Queenstown Police Station to undergo an evidential breath test, blood test or both. When they were on the way to the Police Station, Mr Mabee told the accompanying officers that he had knocked his head during the accident. The police therefore diverted to Queenstown Lakes District Hospital.
Mr Mabee was examined by Dr Wills on arrival at the hospital. Two police officers were present through Dr Wills’ initial examination and, at its conclusion, one of the officers informed Mr Mabee that he would be required to permit a blood sample to be taken, and cautioned him. Dr Wills then spoke to Mr Mabee. At his direction, a nurse took the specimen, checking first with Mr Mabee that he consented. The nurse then sealed the blood specimen collection kit and handed it to one of the police officers present, Constable Hargraves, who later sent it to the ESR. Analysis of that blood specimen found 137 milligrams of alcohol per 100 millilitres of blood, therefore in excess of the 80-milligram limit.[4]

Proposed grounds of appeal

[4]Land Transport Act 1998, s 56(2).

Mr Mabee seeks leave to argue three grounds of appeal as follows:
(a)police presence during Mr Mabee’s examination at Queenstown Hospital was a breach of the Land Transport Act 1998 and/or an unreasonable and arbitrary detention. In the circumstances evidence from the sample obtained should be ruled inadmissible;
(b)the procedure set out in s 73 of the Land Transport Act…

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 Mabee v Police

Details

AGLC: Mabee v Police [2017] NZCA 570
Case: [2017] NZCA 570
Decision Date: 7 December 2017 at 10.30 am

CaseChat Overview and Summary

Vaughan Grosvenor Mabee sought leave to bring a second appeal against his conviction for driving with excess blood alcohol content. The application was dismissed by the Court of Appeal of New Zealand. The applicant argued that his appeal involved a matter of general or public importance and that a miscarriage of justice may have occurred unless the appeal was heard. The respondent opposed the grant of leave. The applicant proposed three grounds of appeal, none of which had merit. The Court of Appeal found that the presence of police officers during the initial examination did not prejudice the applicant's treatment and that the procedure for taking a blood specimen was followed. The Court also found that the procedure for dealing with the blood specimen was complied with, despite some technical breaches, and that there was no risk of a miscarriage of justice.

The Court of Appeal declined the application for leave to bring a second appeal against conviction.

Orders