Police v Buck - [2014] NZHC 2102

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000008

CRI-2014-485-000067 [2014] NZHC 2102

BETWEEN
NEW ZEALAND POLICE

Applicant

AND

DARIN JOHN BUCK Respondent

Hearing: 2 September 2014

Counsel:

I R Murray for Applicant
K I Jefferies for Respondent

Judgment:

2 September 2014

JUDGMENT OF COLLINS J

Introduction

[1] This judgment explains why I am allowing the appeal by the police and remitting this case back to the District Court so that a case can be stated for the High Court to consider and determine.

[2] The police application is not opposed by Mr Buck.

[3] The proposed question is whether Judge Butler ought to have concluded that Mr Buck had made a valid waiver of his right to counsel as guaranteed under s 23 of the New Zealand Bill of Rights Act 1990 (NZBORA).

Background

[4] On 7 January 2013 Mr Buck was charged with driving with an excess blood alcohol level of 245 milligrams of alcohol per 100 millilitres of blood.

NEW ZEALAND POLICE v BUCK [2014] NZHC 2102 [2 September 2014]

[5] On 10 February 2014, Judge Butler, sitting in the Hutt Valley District Court, dismissed a charge of driving with excess blood alcohol following a finding that Mr Buck had not made an informed and voluntary waiver which led to the exclusion of the blood test results. The police sought to appeal by way of case stated.

Judge Butler’s decision

[6] The sole prosecution witness was Senior Constable Davies, who stopped Mr Buck’s car and conducted a roadside breath screening test. Afterward, Senior Constable Davies required Mr Buck to accompany him to the Upper Hutt Police Station for an evidential breath test, blood test or both. Mr Buck agreed and Senior Constable Davies advised him of his rights under the NZBORA.

[7] At the police station Senior Constable Davies again advised Mr Buck of his NZBORA rights. Mr Buck told Senior Constable Davies that he wanted to consult a lawyer. Attempts were then made to contact a lawyer from a list provided by the police. Mr Buck said he could not read the list without his reading glasses. He was unwilling for the list to be read to him by Senior Constable Davies, but the male passenger who had been in Mr Buck’s car with him located his glasses for him. When Mr Buck had his glasses, he said that he wished to speak to a lawyer on the list. He was given the opportunity to telephone the lawyer and had a conversation.

[8] After this, Mr Buck attempted to provide breath samples. Senior Constable Davies thought Mr Buck’s attempts were inept and advised him of this. He read Mr Buck his NZBORA rights again. Mr Buck refused to sign an acknowledgment form and indicated that at that point he wanted to speak to a lawyer. He tried to contact three lawyers but was unable to reach anyone.

[9] At this point Senior Constable Davies said that Mr Buck advised him that he wanted to get…

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 2102
Case: [2014] NZHC 2102
Decision Date: 2 September 2014

CaseChat Overview and Summary

The case of Police v Buck involved a challenge by the New Zealand Police to a decision of Judge Butler in the Hutt Valley District Court. The police were appealing the dismissal of a charge against Darin John Buck for driving with an excess blood alcohol level. The central legal issue was whether Mr Buck had validly waived his right to counsel under section 23 of the New Zealand Bill of Rights Act 1990. The District Court found that Mr Buck had not made an informed and voluntary waiver, leading to the exclusion of the blood test results and the dismissal of the charge. The police sought to appeal by way of case stated, but faced procedural difficulties in doing so.

The court considered the legal principles governing the appeal, noting that the proper procedure was set out in Hyde v Direen. The High Court found that there was a question of law to be determined regarding whether Mr Buck had made a valid waiver of his right to counsel. However, the court did not expand on this issue as it was not for their consideration on the present appeal. The court determined that Judge Butler had erred in refusing to state a case for the High Court to consider, likely due to a misunderstanding about the nature of the appeal. The High Court made an order under section 109(3) of the Summary Proceedings Act 1957, requiring Judge Butler to state a case for the High Court to hear and determine.

The final orders were that the police should immediately file a draft case stated in the Lower Hutt District Court for Judge Butler's consideration, and that Judge Butler should state a case for the High Court to hear and determine. This ruling effectively reinstated the appeal process, allowing the High Court to review the District Court's decision on the waiver of Mr Buck's right to counsel.

Orders