Patel v Police - [2016] NZCA 109

IN THE COURT OF APPEAL OF NEW ZEALAND

CA621/2015
[2016] NZCA 109

BETWEEN	VINESH PATEL Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	1 March 2016
Court:	Randerson, Peters and Collins JJ
Counsel:	A J Haskett for Applicant Z R Johnston for Respondent
Judgment:	11 April 2016 at 9:00 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

The applicant, Mr Patel, was convicted of driving with excess blood alcohol following a Judge-alone trial before Judge P Sinclair in the District Court at Auckland.[1] Moore J dismissed Mr Patel’s appeal against conviction.[2]
[1]Police v Patel [2015] NZDC 14698.
[2]Patel v Police [2015] NZHC 2361.
Mr Patel now seeks leave to bring a second appeal against conviction. The Court may not grant leave unless satisfied that the appeal involves a matter of general or public importance or that a miscarriage of justice may occur unless the appeal is heard.[3]
[3]Criminal Procedure Act 2011, s 237; McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
Counsel for Mr Patel, Mr Haskett, submits that the points he seeks to pursue on appeal satisfy each of these grounds.

Background

At approximately 2.30 am on 17 August 2014 Mr Patel failed a roadside breath screening test. After advising Mr Patel of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA), including his right to consult a lawyer, a constable at the scene required Mr Patel to accompany him to a police station to undergo an evidential breath test, blood test or both.
The constable repeated Mr Patel’s NZBORA rights at the police station. Mr Patel said he wished to speak to a lawyer. The first two lawyers the constable telephoned did not respond but ultimately Mr Patel spoke to Ms S for, on the evidence accepted by the Court, some 17 minutes. At the end of the discussion, Mr Patel expressed dissatisfaction with the legal advice given but did not ask to speak to another lawyer. The constable then required Mr Patel to undergo an evidential breath test without delay.
In the course of the breath testing procedure Mr Patel said that Ms S had only given him advice about blood testing and not about breath testing. Mr Patel’s first proposed ground of appeal is that, having been advised of this, the constable was required to ask Mr Patel whether he wished to consult a lawyer again.
The constable’s attempts to administer the evidential breath test were unsuccessful. On the first attempt, Mr Patel did not blow into the tube sufficiently to provide a sample. His second attempt was unsuccessful, because he did not blow into the device at all or blew very little. A third attempt failed because the sample contained mouth alcohol.
By this time it was 3.21 am. The constable required Mr Patel to give a blood specimen and repeated Mr Patel’s NZBORA rights, following which Mr Patel…

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 Patel v Police

Details

AGLC: Patel v Police [2016] NZCA 109
Case: [2016] NZCA 109
Decision Date: 11 April 2016 at 9:00 am

CaseChat Overview and Summary

In Patel v Police, the applicant, Vinesh Patel, sought leave to bring a second appeal against his conviction for driving with excess blood alcohol. The case was heard by Randerson, Peters, and Collins JJ in the Court of Appeal of New Zealand. Patel was convicted following a Judge-alone trial in the District Court at Auckland and had previously appealed against his conviction, which was dismissed by Moore J. The central legal issues revolved around Patel's contention that the police constable failed to adequately facilitate his right to consult a lawyer and that the constable should have required him to undergo a further evidential breath test instead of immediately requiring a blood specimen after the initial breath tests failed to produce a result.

The Court of Appeal examined whether Patel's proposed grounds for appeal met the statutory criteria for granting leave to appeal, specifically whether the appeal involved a matter of general or public importance or whether a miscarriage of justice might occur if the appeal was not heard. Regarding the facilitation of legal consultation, the Court found that the Judge had correctly interpreted and applied the law, concluding that the constable's duty to facilitate consultation with a lawyer did not extend to continuously enquiring if Patel wished to consult another lawyer. The Court also determined that the constable had exercised his discretion under the Land Transport Act 1988 reasonably by requiring a blood specimen instead of another breath test, given the failed attempts and the late hour.

Ultimately, the Court concluded that the proposed grounds for appeal did not meet the required threshold as they did not present a matter of general or public importance, nor was there a risk of a miscarriage of justice if the appeal were not heard. Therefore, the application for leave to bring a second appeal was declined.

Orders