McKinney v New Zealand Police
[2021] NZSC 68
•21 June 2021
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 30/2021 [2021] NZSC 68 |
| BETWEEN | MARK ANTHONY MCKINNEY |
| AND | NEW ZEALAND POLICE |
| Court: | O’Regan, Ellen France and Williams JJ |
Counsel: | A J Haskett for Applicant |
Judgment: | 21 June 2021 |
JUDGMENT OF THE COURT
AThe application to adduce evidence in support of the application is dismissed.
B The application for leave to appeal is dismissed.
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REASONS
Leave sought
The applicant seeks leave to bring a leapfrog appeal against a decision of the High Court.[1] In that decision, the High Court allowed an appeal by the police against a decision of the District Court dismissing a charge against the applicant for driving a vehicle while the proportion of alcohol in his breath exceeded 400 mcg of alcohol per litre of breath.[2] The District Court Judge had dismissed the charge on the basis that there had been non‑compliance with s 77 of the Land Transport Act 1998.
The Block J issue
[1]New Zealand Police v McKinney [2021] NZHC 330 (Powell J) [HC judgment].
[2]New Zealand Police v McKinney [2020] NZDC 20169 (Judge Field) [DC judgment]. The proportion of alcohol in the applicant’s breath was 562 mcg of alcohol per litre of breath.
When a motorist fails a breath test, he or she may elect to undergo a blood test. Under s 77(1), it is to be conclusively presumed that the proportion of alcohol in a defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant’s breath indicated by the breath test. A similar presumption applies in relation to blood tests under s 77(2). Where a motorist has failed a breath test but elected to undergo a blood test, evidence of the breath test is inadmissible, so his or her guilt or innocence is determined exclusively by the blood test.
Relevantly for the present appeal, s 77(3) provides that the result of a positive evidential breath test is inadmissible if the person who underwent the breath test is not advised by an enforcement officer that the test was positive and as to the consequences should he or she not request a blood test within 10 minutes of being informed of the positive breath test. The point at issue in the present case relates to the nature of the warning required to be given under s 77(3). Under s 77(3A)(a), the consequences of which the motorist must be warned are “that the positive [breath] test could of itself be conclusive evidence to lead to that person’s conviction for an offence against [the Act]” if the test indicates that the proportion of alcohol in the person’s breath exceeds the permissible limit.
The procedure adopted by police officers undertaking breath tests involves the use of a Police Procedure Sheet (POL515 09/19). Block J of the sheet sets out the form of the warning given in the circumstances arising under s 77(3). At the time of the applicant’s breath test, the text of that warning applicable to him was:
If you do not within 10 minutes request a blood test, the evidential breath test you have just undergone could, of itself, be conclusive evidence in a prosecution against you under the Land Transport Act 1998.
In the District Court, the Judge found that this wording did not meet the requirements of s 77(3A) because it refers to conclusive evidence in a prosecution, rather than conclusive evidence to lead to a conviction.[3]
Solicitor-General’s Reference (No 1 of 2020)
[3]DC judgment, above n 2, at [6]–[7].
The adequacy or otherwise of the wording used in Block J was the subject of a Solicitor‑General’s Reference to the Court of Appeal. In Solicitor‑General’s Reference (No 1 of 2020), the Court of Appeal ruled that the wording of Block J that applies in the applicant’s case conveys the sense and effect of the warning required by s 77(3A)(a) and therefore complies with the requirements of s 77.[4] The reference to “sense and effect” comes from earlier decisions of the Court of Appeal, in which it had been held that it is essential only to convey the “sense and effect” of the statutory language to a motorist, avoiding any real risk of misunderstanding, rather than requiring any specific formula.[5]
[4]Re Solicitor‑General’s Reference (No 1 of 2020) [2020] NZCA 563.
[5]At [30], citing Boyd v Auckland City Council [1980] 1 NZLR 337 (CA) at 341–342; Barr v Ministry of Transport [1983] NZLR 720 (CA) at 722; Sherry v Ministry of Transport CA99/84, 28 September 1984; and Suluy v Ministry of Transport [1986] 2 NZLR 380 (CA).
In allowing the appeal against the District Court judgment, the High Court applied the law as set out in Solicitor‑General’s Reference (No 1 of 2020).[6]
The present application
[6]HC judgment, above n 1, at [15].
The applicant wishes to appeal directly to this Court from the High Court decision essentially as a means to challenge in this Court the decision of the Court of Appeal in Solicitor‑General’s Reference (No 1 of 2020). The applicant wishes to argue that the Court of Appeal was wrong to apply the “sense and effect” approach adopted in Barr v Ministry of Transport and other cases.[7] The applicant’s counsel describes that approach as “outdated and inapt”.
[7]Barr v Ministry of Transport, above n 5.
The applicant argues that leave to appeal should be granted because a substantial miscarriage of justice may have occurred and also because the matter is one of general and public importance.[8] The applicant acknowledges that a direct appeal from the High Court to this Court also engages s 75 of the Senior Courts Act 2016, which provides that this Court must not give leave for a direct appeal unless the Court is satisfied there are exceptional circumstances justifying such an appeal.
[8]Senior Courts Act 2016, s 74(2)(a) and (b).
The Court of Appeal has undertaken a thorough examination of the arguments relating to the Block J issue in Solicitor‑General’s Reference (No 1 of 2020). Its decision applies the “sense and effect” approach that has applied in New Zealand since the 1980s.[9] The decision has resolved what was a significant issue affecting numerous prosecutions.
[9]See also Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
We accept that the Block J issue affects a large number of prosecutions and may therefore give rise to a matter of general or public importance. However, we do not consider that the interests of justice would be served by what would effectively be a repeat of the exercise already undertaken by the Court of Appeal in Solicitor‑General’s Reference (No 1 of 2020). We do not see the arguments the applicant wishes to raise as having sufficient prospects of success to justify a reconsideration of that exercise. Nor do we accept any miscarriage of justice arises, for the same reason. We accept that, if the leave criteria had been met, it would have made sense to allow for a direct appeal to this Court from the High Court decision in the present case. This is because Solicitor‑General’s Reference (No 1 of 2020) provides this Court with a clear enunciation of the Court of Appeal’s approach to the issue.
The applicant sought leave to adduce evidence in support of the application. This was a copy of an affidavit that the respondent sought to adduce at the hearing of Solicitor‑General’s Reference (No 1 of 2020) in the Court of Appeal. That Court declined to receive it because it was not relevant to the questions it was addressing. We decline leave to adduce it for the same reason.
The application for leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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