Police v Harrison

[2015] NZHC 173

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-000069 [2015] NZHC 173

POLICE

v

MATTHEW WILLIAM HARRISON

Hearing:	(On Papers)
Counsel:	K B Bell for Applicant C S Withnall QC for Respondent
Judgment:	16 February 2015

JUDGMENT OF WHATA J

This judgment was delivered by me on 16 February 2015 at 4:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

POLICE v MATTHEW WILLIAM HARRISON [2015] NZHC 173 [16 February 2015]

[1]      The appellant seeks leave to appeal to the Court of Appeal under s 144 of the Summary Proceedings Act 1957. Having considered the memoranda of Counsel, I am satisfied that leave should be granted to appeal my judgment in this matter in respect of the following questions:

(a)      Was I correct to hold that Dr Weaver was not, in terms of s 73(3) of the Land Transport Act 1998, the medical practitioner in immediate charge of Mr Harrison at the time the blood specimen was taken? and

(b)If so, was I correct to hold that strict non-compliance with s 73(3) is not curable by recourse of the “reasonable compliance” proviso in s 64(2) of the Act?

[2]      I  consider  that  the  first  question,  while  framed  as  an  inquiry into  facts, concerns a legal condition precedent to the exercise of power to take blood. It is therefore appropriate for the purposes of appeal.

[3]      Both questions raise matters of public interest.

[4]      Mr Withnall QC also signalled that he wanted to challenge findings of fact if in  the  event  I am  not  upheld  on  the  questions  of  law. At  my request  Counsel conferred and advised as follows:

(a)      Counsel  agree  that  the  evidential  issue  that  has  been  raised  by Mr Withnall QC will require consideration only if the Court of Appeal is minded to answer the proposed questions in the negative and is otherwise best dealt with in connection with disposition of the appeal (if required) rather than as a third question.

(b)The Court of Appeal would have jurisdiction to deal with the issue in that manner pursuant to s 144B of the Summary Proceedings Act

1957.

(c)      Counsel are therefore agreed that the issue raised by Mr Withnall QC can be considered in submissions and oral argument but need not be submitted to the Court of Appeal for a decision as a question of law.

[5]      Given the foregoing, I am content to proceed on the basis that it will be for the Court of Appeal to determine whether any issues of fact are properly before it.

[6]      I therefore grant leave, by consent, to the two questions noted at [1](a) and

(b) above.

Whata J

Solicitors:

Raymond Donnelly & Co, Christchurch
C S Withnall QC, Dunedin