McCallum v Police - [2014] NZHC 1135

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2013-476-8 [2014] NZHC 1135

BETWEEN
GRAHAM RODERICK McCALLUM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 May 2014

Counsel:

C S Withnall QC for Appellant
N M Willcocks for Respondent

Judgment:

27 May 2014

JUDGMENT OF HEATH J

This judgment was delivered by me on 27 May 2014 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Dean & Associates, Timaru
Crown Solicitor, Timaru

McCALLUM v NEW ZEALAND POLICE [2014] NZHC 1135 [27 May 2014]

Introduction

[1] Mr McCallum was charged with driving a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath.1
Following a defended hearing in the District Court at Oamaru on 9 October 2013, a reserved judgment was delivered on 3 December 2013.2

[2] Judge Kellar found Mr McCallum guilty of the offence. On 18 December

2013, Judge Maze entered a conviction, fined Mr McCallum $1050, ordered him to pay Court costs, and disqualified him from holding or obtaining a driver licence for a period of six months.3 Immediately after the sentence had been pronounced, a notice of appeal was filed against the conviction. Judge Maze made an order deferring operation of the disqualification pending appeal.

[3] Mr McCallum appeals against his conviction on two grounds. The first is that the District Court Judge erred in holding that, in the circumstances disclosed in the evidence, a police officer was entitled to administer a breath screening test. The second is that the Judge was wrong to admit evidence of the evidential breath test because the officer first “required” Mr McCallum to undergo a breath screening test, contrary to the provisions of the Land Transport Act 1998 (the Act).

Background

[4] There is no dispute with the background facts set out in Judge Kellar’s

judgment.4 My summary is drawn from them.

[5] Sergeant Muldrew knew Mr McCallum. At about 2.20pm on 1 June 2013, he saw Mr McCallum driving a van on State Highway 1, near Herbert. The officer observed Mr McCallum’s van turning into the carpark of the Maheno Tavern. Mr
McCallum alighted and entered the hotel.

1      Land Transport Act 1998, s 56(1)(a).
2      Police v McCallum DC Oamaru CRI 2013-045-243, 3 December 2013 (Judge Kellar).
3      Police v McCallum DC Oamaru CRI 2013-045-243, 18 December 2013 (Judge Maze).
4      Police v McCallum DC Oamaru CRI 2013-045-243, 3 December 2013 at paras [8]–[11].

[6] Sergeant Muldrew drove into the hotel carpark. He then walked into the tavern. Mr McCallum was seated at the bar. The officer estimated (based on a reconstruction prior to the hearing) that he would have taken about 26 seconds to go from his vehicle to the tavern premises. Other evidence suggested that the delay could have been between three and five minutes. While the Judge accepted the Sergeant’s evidence on this issue, I regard any difference in the timing as immaterial.

[7] When Sergeant Muldrew entered the…

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 McCallum v Police

Details

AGLC: McCallum v Police [2014] NZHC 1135
Case: [2014] NZHC 1135
Decision Date: 27 May 2014

CaseChat Overview and Summary

In McCallum v Police, the appellant, Mr. Graham Roderick McCallum, appealed against his conviction for driving with a blood alcohol concentration exceeding the legal limit. The appeal was heard by His Honour Justice Heath in the High Court of New Zealand. The central issues were whether the police officer was entitled to administer a breath screening test and whether the evidence of the evidential breath test should have been admitted due to the manner in which Mr. McCallum was required to undergo the test.

The court considered the statutory provisions of the Land Transport Act 1998, specifically Section 68, which allows enforcement officers to require certain individuals to undergo breath screening tests. The court found that Mr. McCallum was indeed a "driver" within the meaning of Section 68(1)(a), as he had driven to the location where the test was administered, and there was a sufficient proximity to the act of driving. The court rejected the argument that the breath test should not be admissible because the officer asked Mr. McCallum to "come and have a chat" instead of requiring him to undergo the test. The court held that Mr. McCallum voluntarily accompanied the officer and that there was no unlawful detention as he remained at the hotel premises.

The High Court dismissed the appeal and upheld the conviction, resulting in the disqualification order from holding or obtaining a driver's licence for six months. The disqualification was set to commence on May 28, 2014.

Orders