Paniora v Police - [2014] NZHC 3363

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2014-488-000051 [2014] NZHC 3363

BETWEEN
BULLA PANIORA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 December 2014

Appearances:

M A Littlefair for Appellant
M Jarman-Taylor for Respondent

Judgment:

19 December 2014

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against conviction]

This judgment is delivered by me on 19 December 2014 at 3 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

PANIORA v NEW ZEALAND POLICE [2014] NZHC 3363 [19 December 2014]

Introduction

[1] In a judgment delivered on 20 November 2014, Mr Bulla Paniora was found guilty by Judge Duncan Harvey in the District Court at Kaikohe on a charge of driving with excess blood alcohol (“the judgment”).1 Following that conviction he was fined $1600 and disqualified from driving for 10 months.

[2] Mr Paniora has appealed against his conviction, on the grounds that the Judge was wrong to find that there was no undue or unreasonable delay and/or non compliance under s 72(3) of the Land Transport Act 1998 (“the LTA”); was wrong to find that there was no unreasonable, unlawful or arbitrary detention in breach of s 22 of the New Zealand Bill of Rights Act 1990 (“the BORA”), or if there was, the evidence was still admissible under s 30 of the Evidence Act; and was wrong to find that there was no breach of his rights under s 23(5) BORA to be treated with respect and dignity and avoid humiliation and shame.

Facts

[3] At 10.40 pm on 2 January 2014, Mr Paniora was stopped at a Police

checkpoint on state highway 12, at Omapere. A breath screening test indicated “over

400” (that is, a fail). Having been given his rights, Mr Paniora was at 10.55 pm

required to undergo an evidential breath test. That test gave a breath alcohol level of

571 micrograms of alcohol per litre of breath. Mr Paniora was advised that this was a positive result. He was given his rights for a second time. At 11.11 pm, Mr Paniora requested a blood test.

[4] A police officer, Constable Tracey Stainburn, and another police officer then took Mr Paniora for a blood test. Initially they were heading for Kawakawa Hospital, but en route they were advised by radio that the hospital at Rawene would be more convenient. They arrived at Rawene Hospital at 11.44 pm. They remained
at Rawene Hospital for 36 minutes, but a blood specimen was not taken there.

1 NZ Police v Paniora DC Kaikohe CRI 2014-027-653, 20 November 2014.

[5] At 12.20 am, the police officers and Mr Paniora left for Kawakawa Hospital. They arrived there at 1.10 am. The blood specimen was taken at 1.19 am. Mr Paniora was subsequently dropped off in the centre of Kawakawa. Analysis of the specimen disclosed a blood alcohol level of 109 milligrams of alcohol (plus or minus five milligrams) per 100 millilitres of blood.

District Court judgment

[6] Judge Harvey recorded the issues as…

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 Paniora v Police

Details

AGLC: Paniora v Police [2014] NZHC 3363
Case: [2014] NZHC 3363
Decision Date: 19 December 2014

CaseChat Overview and Summary

Bulla Paniora appeals against his conviction for driving with excess blood alcohol, on the grounds that the District Court Judge erred in his assessment of the evidence. The appeal concerns whether the delay in taking a blood specimen was unreasonable and/or non compliant with s 72(3) of the Land Transport Act 1998; whether there was an unreasonable, unlawful or arbitrary detention in breach of s 22 of the New Zealand Bill of Rights Act 1990; and whether there was a breach of his rights under s 23(5) of the BORA to be treated with respect and dignity and avoid humiliation and shame. The court found that the delay was not unreasonable, and that there was no arbitrary detention or breach of s 23(5). The appeal was dismissed.

Orders