Nu'u v Police
[2025] NZHC 1258
•21 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000161
[2025] NZHC 1258
BETWEEN JO-ANN MARGARET NU’U
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 May 2025 Appearances:
A Kala for Appellant
G Lund for Respondent
Judgment:
21 May 2025
JUDGMENT OF LANG J
[on appeal against conviction]
This judgment was delivered by Justice Lang On 21 May 2025 at 2.00 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Public Defence Service, Auckland
Meredith Connell, Office of the Crown Solicitor, Auckland
NU’U v POLICE [2025] NZHC 1258 [21 May 2025]
[1] Following a defended hearing in the District Court, Judge D A Bell found Ms Nu’u guilty on charges of careless driving1 and failing to comply with an enforcement officer’s requirement to permit a health practitioner to take a blood specimen.2 The Judge subsequently gave reasons for her decision on 31 March 2025.3
[2] Ms Nu’u appeals against conviction on both charges. She contends that errors in the Judge’s decision, and the process by which she reached her decision, have created a real risk that the outcome of the trial was affected.4
Leave to appeal out of time
[3] Ms Nu’u filed her notice of appeal nearly two months out of time. The reason for this was a delay by the Judge in providing reasons for her decision. The delay is therefore explained and has caused no prejudice to the respondent. I grant leave to file the appeal out of time accordingly.
Background
[4] The charges were laid following an incident that occurred on the afternoon of 21 October 2023. On that date, two police officers were called to a motor vehicle collision in suburban east Auckland. When they arrived at the scene, they spoke to [C], the driver of one of the vehicles that had been involved in the accident. He said the other vehicle had driven away, and that the female occupants of that vehicle were about to get into an Uber taxi around the corner. He gave the officers a description of the clothing worn by the driver of the other vehicle.
[5] One of the officers, Constable McKenzie, went around the corner and found three females getting into an Uber taxi. He spoke to these persons and obtained their details. He also obtained details of where they had been sitting in their vehicle.
[6] Satisfied that Ms Nu’u had been the driver of that vehicle, Constable McKenzie asked her whether she had been drinking alcohol. She said that she had consumed five
1 Land Transport Act 1998, s 37(1).
2 Sections 60 and 72(1)(a).
3 Police v Nu’u [2025] NZDC 5130.
4 Criminal Procedure Act 2011, s 232(2) and (4).
Heineken beers. He then administered a breath screening test with her consent. This returned a positive reading. The constable then placed Ms Nu’u in the rear seat of his vehicle and required her to undergo an evidential breath test. When her actions indicated that she refused, the officers drove her to the Mount Wellington police station. Once at the police station, Constable McKenzie asked Ms Nu’u to permit a medical practitioner to take a specimen of her blood for analysis purposes.
[7] The events that occurred thereafter form much of the basis for the present appeal. In short, the prosecution alleged that, having previously been conversing in English, Ms Nu’u began conversing in te reo Māori once the constable asked her to provide a specimen of her blood. After taking advice from his superior Constable McKenzie formed the view that Ms Nu'u’s actions constituted a refusal to consent to a blood sample being taken. He then charged her with careless driving and refusing to provide a blood specimen.
The approach on appeal
[8] The approach to an appeal against conviction under s 232 of the Criminal Procedure Act 2011 (CPA) was confirmed by the Supreme Court in Sena v Police.5 In that case the Supreme Court confirmed that an appellate court must reach its own conclusion as to the correctness of the verdict reached in the court below. However, the appellant bears the onus of establishing why the decision in the Court below was wrong.6
[9] The Supreme Court also acknowledged that when assessing the correctness of credibility findings after oral evidence has been given, an appellate court will exercise “customary caution”.7 This may be particularly important when matters such as the credibility of witnesses are at issue.
5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
6 At [38].
7 At [38].
Issues on appeal
[10] On Ms Nu’u’s behalf, Ms Kala advances four broad issues in support of the appeal:
(a)The length of time taken by the Judge to produce the reasons for her decision breached Ms Nu’u’s rights under s 25 of the New Zealand Bill of Rights Act 1990 (NZBORA).
(b)The Judge erred in finding that Ms Nu’u was the driver of one of the vehicles that was involved in the collision.
(c)The Judge erred in finding the evidence given of Constable McKenzie to be credible.
(d)There was insufficient evidence to enable the Judge to conclude that Ms Nu’u had refused to provide a blood specimen.
Did the Judge’s delay in providing her reasons amount to a breach of Ms Nu’u’s NZBORA rights?
[11] In order to understand this issue, it is necessary to describe what happened in the District Court.
[12] The evidence on both charges was completed at a defended hearing held on 21 October 2024. The Judge then sought further submissions in writing from counsel in relation to the third and fourth issues raised on the present appeal.
[13] After receiving further submissions, the Judge announced at a further hearing on 27 November 2024 that she had found Ms Nu’u guilty on both charges. She then proceeded to sentence Ms Nu’u.8 The Judge indicated at that time that her reasons for finding the charges proved would follow. However, she did not deliver those reasons until 31 March 2025.
8 Police v Nu’u [2024] NZDC 32250.
[14] Section 25(b) of NZBORA provides that every person charged with an offence has the right to be tried without undue delay. In advancing a submission that the delay in delivering the reasons breached Ms Nu’u’s rights under s 25, Ms Kala relies on Tunstall v Police.9 In that case, this Court found that a delay of just over 42 weeks between the end of a Judge-alone trial and the delivery of judgment amounted to an undue delay that infringed the appellant’s rights under s 25. The appeal was allowed and the conviction and sentence were quashed.
[15] The facts in Tunstall are plainly distinguishable from those in the present case. The delay in that case related to the delivery of verdicts. In the present case the Judge’s verdicts were delivered on 27 November 2024 and Ms Nu’u was sentenced on the same date. No undue delay occurred in either the delivery of verdicts or the imposition of sentence.
[16] I accept that it is regrettable that the Judge took another four months to produce the reasons for her decision finding the charges proved. However, Ms Nu'u knew when the Judge delivered her verdicts that the essential reason for the Judge’s decision was that she had concluded that Ms Nu'u had failed to comply with Constable McKenzie’s request that she supply a blood specimen. This is not a case in which a defendant has been left wondering why a conviction has been entered.
[17] The failure to give reasons promptly obviously impacted on Ms Nu’u’s ability to file an appeal against conviction because she could not compose her grounds of appeal until she knew the reasoning process the Judge had followed. However, any prejudice arising out of this is remedied by the fact that leave has been granted to bring the appeal out of time.
[18] I therefore do not consider s 25 is engaged in the present case. Even if it was, I consider it would be wholly disproportionate to set the convictions and sentence aside by virtue of any breach that has occurred.
[19]This ground of appeal fails as a result.
9 Tunstall v Police HC Court Hamilton AP57/02, 26 November 2002.
Did the Judge err in finding that Ms Nu’u was the driver of one of the vehicles involved in the collision?
[20] This was one of the principal issues the Judge was required to determine at trial. She found that the prosecution had established this element in the following paragraph of her reasons:
[18] I find that it was Ms Nu’u who was driving that day and collided with the rear of Mr [C’s] vehicle. Mr [C] had kept the vehicle in his sights and provided a detailed description of the driver, very shortly afterwards. He distinguished Ms Nu’u from the two passengers. Further, I am satisfied that when asked who the driver of the car was, Ms Nu’u identified herself to Constable McKenzie.
[21] There is no dispute that Mr C’s vehicle was stationary at the time it was struck from the rear by a red Mitsubishi Colt motor vehicle. That vehicle drove off and Mr C followed it until it stopped approximately 600 metres from the scene of the collision.
[22] Mr C said he tried to get the driver’s details when the three occupants got out after the vehicle stopped. However, they began swearing at him. The only person who was co-operative with him was the passenger in the back seat, who gave her name as “Emma”. Mr C said he had to back off at this stage because the passenger in the front seat was “a little bit aggressive” when he tried to obtain the driver’s details.
[23] The three females then walked away from their vehicle. At this point the police arrived, and Mr C told them where the occupants of the other vehicle had gone. As I have already noted, he described the clothing the driver was wearing. He also said the driver was carrying a red bag. Constable McKenzie then walked around the corner and found the three females about to get into the Uber taxi.
[24] Constable McKenzie’s notebook entries made at the time of the incident recorded that the “driver identified herself”. These words came immediately after Ms Nu'u had given the constable her details.
[25] At trial, Ms Kala suggested to Constable McKenzie that he may have asked the females who owned the vehicle in which they had earlier been travelling. He denied that this was the case. He said that he had asked the females who had been driving the
vehicle. It was at this point that Ms Nu’u acknowledged that she had been the driver. The constable was not shaken on this point.
[26] It is in any event difficult to see why the constable would have had any interest in who was the owner of the vehicle. That issue was immaterial to the matters he was required to investigate. These related to the accident that had just occurred. His interest understandably lay in who had been driving the two vehicles at the time of the collision.
[27] The manner in which Ms Nu’u willingly underwent a breath screening test a short time later also suggests she accepted she was the driver. It is unlikely that she would have agreed to this if she had been a passenger in the vehicle. At no stage during the testing procedures that followed did she suggest that she was not the driver.
[28] In addition, Constable McKenzie said that asked Ms Nu’u whether she wished to obtain advice from a lawyer after he formed the view that she had declined to provide an evidential breath sample. She declined, saying “I know I have done wrong”. I consider this to be a clear admission by Ms Nu’u that she was the driver of the vehicle.
[29] I therefore consider there was ample evidence to support the Judge’s conclusion on this issue. This ground of appeal fails as a result.
Did the Judge fail to assess material parts of the evidence?
[30] Ms Kala described this aspect of the appeal as amounting to a challenge to Constable McKenzie’s credibility. However, I do not consider credibility issues arose to any great degree in the present case. The critical issue to be determined in the District Court, as on appeal, relates to the inferences to be drawn from Ms Nu'u’s conduct. For the most part her conduct was not contested.
[31] Nevertheless, under this ground of appeal Ms Kala contends that the Judge failed to consider, assess and determine material issues that were raised by the defence. She says these had an impact on the credibility of the prosecution case.
Error in the traffic crash report
[32] Constable Parima, the other police officer who attended the scene, administered a passive breath screening test on Mr C. He said in evidence that this recorded a negative result. However, he subsequently created a traffic crash report that was submitted to Constable McKenzie the following day before the prosecution trial file was prepared. This recorded that Mr C had returned a positive result on the breath screening test. When questioned Constable McKenzie said he had not read the report as he trusted his colleague to complete it.
[33] When he gave evidence, Constable Parima said this was an error. He said the reason for the error may have been that the device recorded a “pass”, which he recorded in his notebook as being a positive result. The error then made its way into Constable McKenzie’s file for prosecution. Constable Parima said that he distinctly recalled Mr C returning a negative result.
[34] I accept that the file that Constable McKenzie subsequently prepared therefore contained an error about the result of the passive breath test administered to Mr C. However, Mr C’s conduct was never in issue in the District Court. The error therefore had no relevance to the charges faced by Ms Nu'u.
Failure to call other witnesses
[35] Ms Kala criticised the failure of the prosecution to call the passengers in the two vehicles to give evidence. This criticism may have been appropriate if the defence had challenged the charge of careless driving on its merits. However, that was never done. The focus of the defence on that charge was on whether the prosecution could establish that Ms Nu’u was the driver of the vehicle that collided with the rear of Mr C’s vehicle. There was therefore no need for the prosecution to call the passengers to give evidence about the events leading to the careless driving charge. The fact that the passengers were not called was in any event to the advantage of the defence. It seems inherently unlikely that either of the passengers in Ms Nu'u’s vehicle would have given evidence that they were driving the vehicle at the time of the collision.
[36] Further, as Ms Kala accepted during argument, the passengers in the two vehicles were not present during the interactions between the police and Ms Nu’u once the testing procedures commenced. They could not have provided any assistance in relation to the charge of failing to supply a blood specimen.
[37]This ground of appeal fails as a result.
Did the Judge err in concluding that Ms Nu'u refused to undergo an evidential breath test?
[38] It is not clear whether Ms Kala advanced this argument in the District Court because the Judge did not deal with it in her decision. I therefore consider it afresh.
[39] To prove the charge the prosecution had to establish that Ms Nu'u intended to, and did in fact, refuse to permit a sample of her breath to be taken.10 That issue was a question of fact to be determined having regard to the whole of her conduct set against the surrounding circumstances.11
[40] Constable McKenzie gave the following evidence as to what occurred after he placed Ms Nu'u in the rear seat of his vehicle when she failed the breath screening test:
Q. What happened following that?
A.I required her to produce an evidential breath test. I attached a tube to my Dräger device and activated it while holding it up to her and asking her to blow into it to which she refused.
Q. How many attempts did you give the defendant?
A. I asked her multiple times with a minimum of three or four. I tried to explain to her the process but she did not want to listen to me.
Q. Was the defendant compliant at this time?
A.She was physically compliant yes but not listening to what I was saying.
Q. What did you do after that?
A.Because she had refused I subsequently required her to come back to the Mount Wellington Police Station for evidential blood test.
10 Vitullo v Ministry of Transport (1988) 3 CRNZ 227 (HC) at 230.
11 At 230.
[41] During cross-examination Constable McKenzie said that Ms Nu'u was ignoring him once she was placed in the back seat of the police vehicle. He also agreed that at this point she lay down on the back seat. However, he did not accept that she went to sleep. He said she remained conscious during the period he was requiring her to undergo the evidential breath test.
[42] I consider it significant that Ms Nu'u had co-operated with the constable at all stages leading up to and including the breath screening test. She obviously understood everything the constable was saying to her during this part of the testing process. Her attitude obviously changed after she failed that test. It seems inherently unlikely that she would go to sleep in the middle of such a process and the constable denied that this occurred. Further, there is nothing in the evidence to suggest Ms Nu'u failed to understand what the constable wanted her to do when he presented the evidential breath testing device to her after she was placed in the vehicle. He repeated his request that she provide a sample on several occasions. In failing to comply with the constable’s instructions I am satisfied beyond reasonable doubt that she refused to undergo an evidential breath test.
Was there sufficient evidence to establish that Ms Nu'u refused a request by Constable McKenzie that she permit a blood specimen to be taken?
[43] The same approach is to be taken in determining whether Ms Nu'u refused to provide a specimen of her blood after arriving at the police station. Her conduct must be considered in totality and in light of the surrounding circumstances.
[44]Constable McKenzie’s evidence on this point was as follows:
A.We brought her back to the Mount Wellington Station. At this point she had been handcuffed as well I’d like to mention. Once at the Mount Wellington Station I continued the procedures asking her for a blood specimen she from the point that we began driving back to the Mount Wellington Station, she remained silent and did not speak to me. Once at the Mount Wellington Station, she did not speak English but started speaking te reo Māori and I do not speak that language.
Q. Did she speak English at any point after that?
A. She muttered a few words just okay that kind of thing but nothing, no sentences.
Q. Did the defendant consent to a blood test?
A. She did not.
Q. What action did you take after that?
A. I subsequently, when she was refusing to answer in English I did step outside of the room and I did phone my Sergeant, Sergeant Craig Fisher who was my supervisor at the time and double checked things with him and he confirmed that if she’s not speaking in English then I just summons her for the appropriate charges.
Q. What did you take it to mean that when the defendant was not speaking in English to you?
A. I took it that she was refusing a blood specimen.
Q. What did you do next?
A. I subsequently summonsed her for refusing a blood specimen and careless driving as well as mandatory suspension of her driver’s licence for 28 days for refusing a blood specimen.
[45] The Judge determined that Ms Nu'u had refused to provide a blood specimen for the following reasons:
[27] Having regard to Ms Nu’u’s conduct overall namely her actions immediately after colliding with Mr [C’s] vehicle, failing to stop, her demeanour with Constable McKenzie at the police station, and continuing to converse in te reo despite being instructed otherwise, I find as a matter of fact that Ms Nu’u refused to undergo a blood test.
[46] The events that occurred at the police station obviously need to be viewed in light of what had occurred previously. As I have already observed, Ms Nu'u was completely co-operative up until the time she was placed in the police vehicle. Thereafter she clearly decided she would not co-operate in any further testing procedures. This led to her ignoring the constable’s requests that she provide an evidential breath sample.
[47] Matters appear to have escalated when Ms Nu'u began speaking te reo Māori after the constable asked her whether she would be prepared to give a blood sample as they drove to the police station. She continued to speak te reo when the constable formally requested her to provide a blood sample after they arrived at the police station. She did so despite the constable’s repeated requests that she speak English because he did not speak te reo. I consider the only reasonable inference to be drawn
from Ms Nu'u’s conduct after arriving at the police station is that she deliberately failed to respond to the constable’s requests by speaking in a language she knew he did not understand.
[48] These findings mean that Ms Nu'u’s subsidiary arguments effectively fall away. One issue that occupied a significant portion of the hearing in the District Court, and the Judge’s decision, is whether Ms Nu'u was afforded a reasonable opportunity to decide whether to permit a blood specimen to be taken. The defence contended that the constable had told Ms Nu'u he was charging her with refusing to supply a blood specimen approximately a minute after he first engaged with her on that issue at the police station. The Judge did not make a formal finding on that issue but held that the constable had afforded her a reasonable opportunity to provide a blood specimen.12
[49] As the Judge noted,13 the constable made the request for a blood specimen under s 60 of the Land Transport Act 1998. This requires a person who has refused to provide an evidential breath sample to provide a blood sample without undue delay. This is to be contrasted with the position when a request is made under s ss 70A and 77 of the Act, which applies when a person has already provided an evidential breath sample that shows the presence of alcohol in excess of the legal limit.14
[50] I consider it inherently unlikely that the constable decided to charge Ms Nu'u just one minute after first requesting that she provide a blood sample at the police station. The fact that he left the room to seek advice from his superior suggests that more time elapsed than the defence suggested at trial.
[51] However, the events that occurred at the police station cannot be viewed in isolation. It is significant in my view that the constable had earlier asked Ms Nu'u whether she would be prepared to provide a blood sample while they were driving to the police station. It was at this point that she began speaking in te reo. The fact that Ms Nu'u’s continued to speak te reo after they arrived at the police station, and refused to speak English after the constable made repeated requests for her to do so,
12 Police v Nu’u, above n 3, at [25].
13 At [24].
14 A statutory 10-minute period is afforded to suspects who have a choice to decide whether or not to elect a blood test under ss 70A and 77.
demonstrates that her actions formed part of an ongoing attempt to thwart the constable’s attempts to obtain an evidential sample of her breath or blood.
[52] It follows that Ms Nu'u failed to comply with the constable’s request to provide a blood specimen without delay. The constable was not required to give her any further opportunity to consider whether to supply the sample. Nor was he obliged to warn her that she would be charged if she did not respond to him in English.
[53] I consider the situation in the present case is analogous to that which occurred in Raharuhi v Police.15 In that case, the appellant had endeavoured to defend a charge of refusing to provide a blood sample on the basis that he was entitled to insist on responding in te reo when requested by a police officer to provide a sample of his blood. He contended that the prosecution could not establish a refusal to provide a blood specimen because the requesting officer could not understand what the appellant was saying.
[54] The trial Judge had found that the fact that a previous breath screening test had been conducted without incident indicated that the appellant had an understanding of English. He could therefore have either spoken to the officer in English or requested to speak a police officer who spoke te reo if he wished to converse in te reo. The trial Judge held that the appellant understood what he was being asked to do and had acted in a calculated way to the extent that his conduct evinced a refusal to permit a blood sample to be taken.
[55]On appeal, Baragwanath J observed:
[31] The appellant was well aware that the constables did not speak [Māori]. Had he wished to convey to them the message that he sought involvement of a [Māori] speaking police officer he would have had no difficulty in doing that, if necessary by using the English language to say so. The irresistible inference from the evidence is that what he conveyed in response not only to the oral requests, but to gestures including the presentation of the evidential breath alcohol tube, was an attitude of flat refusal.
15 Raharuhi v Police (2003) 20 CRNZ 498 (HC).
[56] I reach the same view in the present case. Ms Nu'u’s ongoing conduct at the police station amounted to a deliberate refusal to provide a specimen of her blood.
Result
[57] Leave is granted to appeal out of time but the appeal against conviction is dismissed.
Lang J
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