Police v Buck - [2014] NZHC 3349

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000008 [2014] NZHC 3349

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

DARIN JOHN BUCK Respondent

Hearing: 2 December 2014

Appearances:

I R Murray and A R van Echten for appellant
K Jefferies for respondent

Judgment:

19 December 2014

JUDGMENT OF CLIFFORD J

Introduction

[1] This is an appeal by way of case stated pursuant to s 107 of the Summary Proceedings Act 1957 against a decision of Judge Butler dismissing a charge of driving with excess blood alcohol.

Facts

[2] On 7 January 2013, the respondent, Darin Buck, was stopped whilst driving, administered a roadside breath screening test and subsequently required to undergo a blood test. That test showed that Mr Buck’s blood contained 245 milligrams of alcohol per 100 millilitres of blood. Mr Buck was subsequently charged with driving with excess blood alcohol.

[3] On 10 February 2014 Judge Butler dismissed the charge of driving with excess blood alcohol.1 He did so on the basis that Mr Buck, due to his intoxication,

1 Police v Buck DC Hutt Valley CRI-2013-078-000102, 10 February 2014.

POLICE v BUCK [2014] NZHC 3349 [19 December 2014]

had not made an informed voluntary waiver of his right to speak to a lawyer prior to the carrying out of the blood test.

[4] The police subsequently obtained the consent of the Solicitor-General to appeal that decision. Procedural difficulties were encountered. Those difficulties were resolved by the judgment of Collins J in this Court on 2 September 2014 requiring Judge Butler to state a case for the High Court to hear and determine.2

[5] Judge Butler subsequently stated the following case:

Question A:

On the facts that I found, was the blood test evidence obtained in breach of section 23(1)(b) of the NZ Bill of Rights Act? In particular, were the facts as found capable of supporting my conclusion that Mr Buck had not validly waived his rights under section 23(1)(b) of that Act.

Question B

If the first question is answered in the affirmative, was I wrong to dismiss the information without considering section 30 of the Evidence Act 2006?

[6] This appeal proceeds on the basis that, at the hearing before the Judge and as recorded in the case stated, it was proved that:

1. On 7 January 2013 at around 9.00 pm the defendant Darin John Buck was driving a Subaru motor vehicle registration number ECG412 on State Highway 2.

2. The vehicle driven by the defendant was stopped by Senior Constable
Davies near the Brown Owl intersection of State Highway 2.

3. The defendant showed signs of having drunk alcohol and admitted to having had four or five bottles of beer.

4. At 9.04 pm Senior Constable Davies administered a breath screening test in accordance with the requirements of the Land Transport Act
1998.

5. The breath screening test gave a failed result.

6. At 9.06 pm Senior Constable Davies required the defendant to accompany him to the Upper Hutt Police Station for an…

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 Buck

Details

AGLC: Police v Buck [2014] NZHC 3349
Case: [2014] NZHC 3349
Decision Date: 19 December 2014

CaseChat Overview and Summary

This appeal concerns the admissibility of evidence obtained in breach of the accused's right to consult a lawyer under section 23(1)(b) of the New Zealand Bill of Rights Act 1990. The appellant, the New Zealand Police, sought to appeal the decision of Judge Butler, who dismissed a charge of driving with excess blood alcohol against the respondent, Darin John Buck. The central legal issue was whether the blood test evidence obtained was in breach of section 23(1)(b) of the New Zealand Bill of Rights Act, specifically whether the facts found supported the conclusion that Mr. Buck had not validly waived his right to speak to a lawyer before the blood test. Additionally, the court had to determine if the Judge was incorrect in dismissing the charge without considering section 30 of the Evidence Act 2006.

The High Court found that Judge Butler's conclusion that Mr. Buck was incapable of an intelligent assessment due to his intoxication was not supported by appropriate evidence. The court held that Mr. Buck had already chosen a lawyer from the list provided and had spoken with him, indicating he understood his rights and had exercised them. The court held that when Mr. Buck said "let’s get on with it", he meant it. The court also found that there was no breach of the facilitation requirement for the right to counsel, as the police had adequately communicated Mr. Buck's rights. Therefore, the court concluded that Judge Butler was incorrect in dismissing the charge. Furthermore, the court noted that once a breach of rights was found, the Judge should have undertaken the s 30 balancing exercise. The court allowed the appeal and remitted the matter to the District Court for further consideration.

The final order of the court was to allow the police's appeal, answer the case stated by finding that there was no breach of the accused's rights under section 23(1)(b) of the New Zealand Bill of Rights Act, and remit the matter to the District Court for further consideration.

Orders