O v Police HC WN CRI-2010-485-01

[2010] NZHC 94

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-01

BETWEEN  O

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         28 January 2010

Counsel:         W M Johnson for Appellant

M Snape for Respondent

Judgment:      2 February 2010

RESERVED JUDGMENT OF RONALD YOUNG J

[1]      Mr O    is  charged  with  driving  with  an  excess  blood  alcohol  level (168 milligrams  of  alcohol  per  100  millilitres  of  blood),  dangerous  driving  and failing to stop.   He has pleaded not guilty and his summary trial is to be held on

4 March 2010.

[2]      He now appeals against a decision by a District Court Judge to impose a condition of his bail that he not consume alcohol and that he submit, on request by the Police, to a passive breath test.

[3]      Some brief background is necessary to understand the imposition of the bail terms.  The charges refer to an incident on 20 September 2009 when a vehicle, said to be driven by Mr O  , crashed into a parked car.  The vehicle then drove off.  It was apparently followed by a member of the public who stayed near the house until

the Police arrived.  The Police arrived some time afterwards, and spoke to Mr O 

O V NEW ZEALAND POLICE HC WN CRI-2010-485-01  2 February 2010

at his home.  Mr O   denied being the driver of the car.  There was no one else in the house other than Mr O   when the Police spoke to him.   The preliminary testing procedure was undertaken at Mr O  ’s house, and later at the Police station.

[4]      Mr O   first appeared in the District Court on 13 November 2009.  He was then remanded on bail without terms until 16 December 2009.   On 16 December

2009, a status hearing was held.  Mr O   persisted with his plea of not guilty, no resolution of the charges occurred and he was remanded to 4 March 2010 for a summary trial.

[5]      Also on 16 December 2009, the Police sought terms of bail, including the current terms challenged, together with a prohibition on Mr O   driving.   The Judge did not impose any driving ban but did impose the alcohol ban.

[6]      Mr O   has two previous convictions for drink driving – one in 1993 with a breath alcohol level of 477, and one in 1996 with a breath alcohol level of 574.

[7]      Understandably, in a busy District Court, no reasons were given by the Judge for the imposition of the alcohol ban and associated condition.

[8]      The Crown say that the rationale for the imposition of the alcohol ban was that the Crown had a strong case that Mr O   was the driver, and that he had driven with a high blood alcohol level, twice the legal limit.   Further, they say Mr O  ’s driving had been particularly dangerous, given he had been observed driving erratically before he had collided with the parked car.  This suggested that he was a potential danger to the public and, although his previous convictions were some time ago, this was the third occasion on which the Crown alleged he had driven whilst above the permitted limit.

[9]      Mr Johnson, in support of the appeal, stressed:

a)        That    when   Mr O         first    appeared   in    November    2009,   the prosecution  apparently  did  not  think  he  was  a  risk  to  the  public

because no conditions restricting his consumption of alcohol were sought.

b)There was nothing to suggest on the facts that Mr O   was a long- term or continuing danger to the public and that his previous convictions were now some 13 and 16 years ago.

c)       Mr O   continued to deny being the driver and was entitled to the presumption of innocence.

[10]     First, dealing with the condition which entitles the Police to passively breath test the defendant at any time at their request.   The Crown accepted that such a condition  could  give  the  Police  quite  inappropriate  power  to  enter  Mr O  ’s residence and breath test him at any time of the day or night.  Whilst I appreciate the concern that an alcohol ban could be seen as valueless unless backed up by some capacity to  test, the current bail term potentially allows a  gross invasion of an defendant’s privacy, well beyond anything that could be justified on the facts of this case.  It could only surely be in the most extreme circumstances where such a term of bail could be justified.

[11]     As to the bail condition prohibiting Mr O   from consuming alcohol, I consider that whether such a condition was justified is finely balanced.  On the one hand, Mr O  ’s previous offending is historic and on that basis it could be said that the evidence that Mr O   was a continuing danger on the roads, if drunk, is not strong.   On the other hand, the events here are significantly worse than, say, a defendant stopped at a check point.   The driving here was bad, given there was a collision with a parked car.   Clearly, whoever was driving the car had very poor control over the vehicle.   A driver in such condition can easily kill or injure a member of the public.

[12]     It is hard to judge the strength of the prosecution case currently.  But if the lay witness comes up to brief, a conviction is likely.  In those circumstances, given the seriously bad driving and Mr O  ’s record, albeit historic, I cannot say that the District Court Judge was wrong in making the decision she did.

[13]     I therefore  allow  the  appeal  against  the  imposition  of  the  bail  provision requiring Mr O   to comply with a Police request for a passive breath test, but I dismiss the appeal as it relates to the prohibition or ban against the consumption of

alcohol.

Ronald Young J

Solicitors:

W M Johnson, PO Box 962, Wellington, email: [email protected]

M Snape, Luke Cunningham & Clere, PO Box 10357, Wellington, email:  [email protected]