[1] Vinesh Christian Patel was convicted in the District Court at Auckland on one charge of driving with excess blood alcohol following a defended hearing before her Honour Judge P Sinclair. Mr Patel was fined $600 with Court costs of $130. He was disqualified from driving for a period of six months.

[2] He appeals against his conviction on four specific grounds, although these can be broadly categorised as follows:

(a) his right to a lawyer under s 23(1) of the New Zealand Bill of Rights

Act 1990 (“NZBORA”) was breached; and

(b)the constable was not entitled to require Mr Patel to provide a blood sample.

Factual background

[3] At 2:24am on 17 August 2014, Mr Patel was stopped at a Police check point and required to undertake a road side alcohol breath test. This returned a positive reading of over 400 micrograms of alcohol per litre of breath which justified the Police officer dealing with Mr Patel, Constable Pukeiti, to require Mr Patel to accompany him to the Ellerslie Police Station for the purposes of undergoing an evidential breath test, blood test or both. The constable advised Mr Patel of the reasons he was being detained and advised him of his rights under NZBORA including the right to consult and instruct a lawyer from the time a telephone was made available to him. He also advised Mr Patel that the Police had a list of lawyers he could speak to for free and he would be given reasonable time to consult and instruct a lawyer of his choice. Constable Pukeiti and Mr Patel then left for the Ellerslie Police Station.

[4] Following their arrival at the Police station, Constable Pukeiti repeated Mr Patel’s rights under NZBORA. He asked Mr Patel if he would like to speak to a lawyer to which Mr Patel replied, “Yes”. The constable noted the time was 2:41am. The constable obtained the list of lawyers and invited Mr Patel to choose one. From

the evidence it seems that the constable called the lawyer chosen by Mr Patel but there was no answer. Attempts were made to contact a second lawyer. This was unsuccessful for the same reason.

[5] The third attempt was successful. Constable Pukeiti spoke to a Ms S following which he escorted Mr Patel into a separate room. He closed the door and allowed Mr Patel to speak with the lawyer in private. He noted the time was
2:45am.

[6] There was some dispute at the hearing…

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 [2015] NZHC 2361
Case: [2015] NZHC 2361
Decision Date: 29 September 2015

CaseChat Overview and Summary

The appeal was brought by Vinesh Christian Patel against his conviction in the District Court for driving with excess blood alcohol. The appeal was heard by Moore J in the High Court of New Zealand. Patel's appeal was based on four grounds, which broadly fell into two categories: the right to a lawyer under the New Zealand Bill of Rights Act 1990 was breached, and the constable was not entitled to require a blood sample. The court examined whether Constable Pukeiti reasonably facilitated Patel's right to access a lawyer before the evidential breath test and whether the constable properly exercised his discretion to require a blood sample. The court found that Patel's right to access a lawyer was reasonably facilitated by Constable Pukeiti, who provided Patel with a list of lawyers and allowed him to speak with one in private. The court also found that Constable Pukeiti properly exercised his discretion under the Land Transport Act 1998 to require a blood sample. The appeal was dismissed.

Orders