Mabee v Police - [2017] NZHC 2015

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2017-425-000020 [2017] NZHC 2015

BETWEEN
VAUGHAN GROSVENOR MABEE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 August 2017

Appearances:

A S P Tobeck for Appellant
R W Donnelly for Respondent

Judgment:

22 August 2017

JUDGMENT OF DUNNINGHAM J

[1] On 13 March 2017, Mr Mabee was convicted on a charge of driving with excess blood alcohol, but acquitted on a charge of careless use of a motor vehicle.1
He appeals his conviction claiming:

(a) he was arbitrarily detained twice during his interactions with police, contrary to s 22 of the New Zealand of Bill of Rights Act 1990 (NZBORA), rendering the subsequently obtained evidence, including the analyst’s certificate, inadmissible; and

(b)there were breaches of the requirements of ss 73 and 74 of the Land Transport Act 1998 (the Act), which rendered the resulting evidence inadmissible and those defects could not be cured in reliance on s 64(2) of the Act.

[2] The respondent rejects these allegations but says, even if established:

1 New Zealand Police v Mabee [2017] NZDC 4910.

MABEE v NEW ZEALAND POLICE [2017] NZHC 2015 [22 August 2017]

(a) in relation to the alleged breaches of the Act, the police could rely on the defence that there was “reasonable compliance” with the Act’s provisions under s 64(2); and

(b)if there had been a breach of NZBORA, it was not a significant or intentional breach, and the evidence subsequently obtained would therefore be admitted under s 30 of the Evidence Act 2006.

The facts

[3] On the evening of 13 November 2015, Mr Mabee was involved in a motor accident. However, he left the scene and returned to his employer’s home which is where he had been earlier that evening. Police found the crashed car, made enquiries and located Mr Mabee at his employer’s house where he was in a sleepout adjacent to the carport. He was asked to come outside, which he did. After discussing the crash, Constable Hargreaves advised him of his rights and asked him to undergo a breath screening test. That resulted in a reading which indicated Mr Mabee was over the legal limit. He was again advised of his rights and asked to accompany the police for an evidential breath test or blood test.

[4] The police originally intended to take Mr Mabee to the police station but decided to divert to the hospital to have the appellant examined when he said he was a bit delusional and must have taken a knock to the head. On arrival at the hospital, he was examined. He was advised that he would be required to permit a blood specimen to be taken for evidential purposes. The specimen was taken. On analysis it returned a reading of 137 milligrams of alcohol per 100 millilitres of blood.

District Court decision

[5] In the District Court, Mr Mabee raised substantially the same arguments as are being run on appeal and these were all considered, but rejected, by the Judge.

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: [2017] NZHC 2015
Decision Date: 22 August 2017

CaseChat Overview and Summary

Vaughan Grosvenor Mabee appeals his conviction for driving with excess blood alcohol. The appeal was dismissed by the High Court of New Zealand. The appellant argued that he was arbitrarily detained twice during his interactions with police, contrary to s 22 of the New Zealand Bill of Rights Act 1990, rendering the subsequently obtained evidence, including the analyst’s certificate, inadmissible. The respondent rejected these allegations but said, even if established, the police could rely on the defence that there was “reasonable compliance” with the Act’s provisions under s 64(2). The court found there was no arbitrary detention of the appellant when police came to talk to him at the property. They were primarily there to check on his welfare as blood had been found at the scene of the crash. The breath test was properly administered and, as it was administered at the place where the request was made, there was no arbitrary detention. The court also found that there was no arbitrary detention at the hospital. It considered that the procedure of taking the blood sample there was ordinary. The appellant at no point took issue with the presence of the police officers, who were merely observing what was occurring. There were no breaches of privacy. The court noted that under s 69(5)(b) of the Act, the appellant had to remain at the hospital until the blood test had been taken. As there was a statutory provision requiring him to be there, any detention was not arbitrary. The court was satisfied that the charge of driving with excess blood alcohol was established. However, given the lack of evidence, it did not find that the police had made out the charge of careless driving. The appeal was dismissed.

Orders