McQuillan v Police - [2018] NZHC 1247

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000064

[2018] NZHC 1247

BETWEEN
MATTHEW SCOTT MCQUILLAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 May 2018

Appearances:

Appellant in Person

L J Fraser for Respondent

Judgment:

31 May 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 31 May 2018 at 11.00 am
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date…………………………

MCQUILLAN v NEW ZEALAND POLICE [2018] NZHC 1247 [31 May 2018]

Introduction

[1] On 7 March 2018, Mr McQuillan was convicted of driving with excess blood alcohol,1 following a Judge-alone trial.2 He appeals his conviction on the grounds that the Judge:3

(a)wrongly allowed the police to amend the charge sheet on the morning of the defended hearing;

(b)wrongly refused Mr McQuillan an adjournment following the amendment of the charge sheet;

(c)wrongly accepted the evidence of the second breath test and/or blood test on the basis that:

(i)there was no requirement for Mr McQuillan to accompany the police to complete an evidential breath test or blood test;

(ii)no formal identification procedure was completed;

(iii)the ESR certificate was “irregular”;

(iv)the blood specimen medical certificate was completed by a nurse and the sample was not carried out by using normal medical procedure; and

(v)the incorrect procedure was followed, and Mr McQuillan should have been given two opportunities to give an evidential breath sample.

1      Land Transport Act 1998, s 56(2).
2      New Zealand Police v McQuillan [2018] NZDC 6653.
3      Mr McQuillan, who was unrepresented on the appeal. These grounds are drawn from the brief submissions he filed before the hearing, which formed the basis of his oral submissions.

[2] Mr McQuillan has a general right of appeal against conviction.4 I must allow the appeal if satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or, a miscarriage of justice occurred for any reason.5 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.6

[3] Except for the ground relating to the adjournment, Mr McQuillan must persuade me that the District Court Judge was wrong, and if he does, is entitled to judgment in accordance with my independent opinion, although I will take into account any particular advantages enjoyed by the trial court.7 The appeal against the decision to refuse an adjournment is an appeal against the exercise of discretion and a different principle applies, which I discuss later when I come to that aspect of the appeal.

The offending

[4] On 30 June 2017, Mr McQuillan was driving at approximately 70 km/h on a road in Epsom, Auckland. He was seen swerving inside his lane. When he was stopped by 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.

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Details

Case: [2018] NZHC 1247
Decision Date: 31 May 2018

CaseChat Overview and Summary

Matthew Scott McQuillan appeals his conviction for driving with excess blood alcohol, arguing that the District Court Judge made several errors that led to a miscarriage of justice. McQuillan contends that the Judge wrongly allowed the police to amend the charge sheet on the morning of the hearing, wrongly refused an adjournment after the amendment, and wrongly accepted the evidence of the second breath test and/or blood test due to alleged procedural errors. The High Court was required to determine if the Judge's decisions amounted to a miscarriage of justice under the Criminal Procedure Act 2011.

The Court found that the amendment to the charge sheet was permissible under section 133 of the Criminal Procedure Act 2011, as it was made before the verdict and did not prejudice McQuillan. The Court held that the Judge was correct to refuse an adjournment as the amendment did not change the nature of the proceedings, and no further case review was necessary. The Court also determined that McQuillan was not entitled to two evidential breath tests and that the evidence from the breath test and blood test was admissible. The Court held that there was no miscarriage of justice in the Judge's acceptance of the analyst's certificate and medical certificate, as they complied with the statutory requirements. Consequently, the appeal was dismissed.

The final orders of the Court were that the appeal is dismissed. The Court did not grant any relief to McQuillan and upheld the District Court's conviction.

Orders