Police v Barr - [2009] NZCA 124

IN THE COURT OF APPEAL OF NEW ZEALAND
CA700/2008
[2008] NZCA 124
BETWEENNEW ZEALAND POLICE

Appellant

ANDLEROY JOHN BARR

Respondent

Hearing:29 January 2009

Court:Chambers, Robertson and Arnold JJ
Counsel:S J Mount for Appellant

A J Bailey and K Cook for Respondent

Judgment:7 April 2009 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.
B The order made in the District Court requiring the respondent to pay medical expenses incurred in administering a blood test is reinstated.

REASONS OF THE COURT
(Given by Chambers J)
Medical test fee
[1]       On 5 March last year, Judge Couch convicted Leroy Barr, the respondent, on a charge of driving while the proportion of alcohol in his blood exceeded 80 mg of alcohol per 100 ml of blood. The judge fined Mr Barr $600 and imposed court costs of $130, medical expenses of $102.60, and an analyst’s fee of $93. He also disqualified Mr Barr from holding or obtaining a driver’s licence for six months.
[2]       Mr Barr appealed against the order requiring him to pay medical expenses. The ground of appeal was that the District Court had no jurisdiction to order such disbursements.
[3] The appeal, which was in the nature of a test case, was heard by French J. In a reserved decision delivered on 14 August last year, she found in Mr Barr’s favour: [2009] NZAR 12. She examined a number of statutory provisions which the police argued might justify the order, but she found none of them did. She quashed the order requiring Mr Barr to pay medical expenses.
[4]       Subsequently, she granted leave to appeal to this court under s 144 of the Summary Proceedings Act 1957. Before us, the police relied on just one authority as providing jurisdiction, namely the Costs in Criminal Cases Act 1967 (CCCA) and the regulations made under it, the Costs in Criminal Cases Regulations 1987 (the 1987 regulations). They no longer sought to rely on three other sources of statutory authority advanced before French J, namely s 67 of the Land Transport Act 1998, s 32 of the Sentencing Act 2002 (the power to impose a sentence of reparation), and the court’s power to impose a fine.
[5]       We are satisfied that the argument advanced by Mr Mount, for the police, is sound. There was jurisdiction for Judge Couch’s order under the CCCA, as supplemented by the 1987 regulations. In the next section of these reasons, we shall explain why we consider that Act provides jurisdiction. We shall then discuss the five arguments Messrs Bailey and Cook put forward on Mr Barr’s behalf.
The Costs in Criminal Cases Act
[6]       Section 4(1) of the CCCA provides as follows:
Where any defendant is convicted by any Court of any offence, the Court may, subject to any regulations made under this Act, order him to pay such sum as it thinks just and reasonable towards the costs of the prosecution.

[7] “Costs” is defined in s 2:
Costs means any expenses properly incurred…

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 Police v Barr

Details

AGLC: Police v Barr [2009] NZCA 124
Case: [2009] NZCA 124
Decision Date: 7 April 2009

CaseChat Overview and Summary

In Police v Barr, the New Zealand Court of Appeal considered the appeal of Leroy Barr, who had been convicted of driving while the proportion of alcohol in his blood exceeded 80 mg of alcohol per 100 ml of blood. The appeal focused on the District Court's order that Barr pay medical expenses incurred in administering a blood test. Barr argued that the District Court had no jurisdiction to order such disbursements. The Court of Appeal found that the District Court did have jurisdiction to order Barr to pay the medical expenses under the Costs in Criminal Cases Act 1967, as supplemented by the Costs in Criminal Cases Regulations 1987. The court rejected the arguments that the statutory provisions permitted the recovery of only “court-related costs” and that the medical test fee was incurred prior to carrying out a prosecution. The Court of Appeal held that the timing of the testing was not significant, provided the testing related to the prosecution. The appeal was allowed, and the order made in the District Court requiring Barr to pay medical expenses of $102.60 was reinstated. The Court of Appeal concluded that the District Court had jurisdiction to order Barr to pay the medical expenses under the Costs in Criminal Cases Act 1967, as supplemented by the Costs in Criminal Cases Regulations 1987. The court rejected the arguments that the statutory provisions permitted the recovery of only “court-related costs” and that the medical test fee was incurred prior to carrying out a prosecution. The Court of Appeal held that the timing of the testing was not significant, provided the testing related to the prosecution.

Orders