Police v M HC Gisborne CRI-2006-416-8

[2006] NZHC 1327

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2006-416-8

IN THE MATTER OF     the District Court stating a case for the opinion of the High Court pursuant to s 107

Summary Proceedings Act 1957

BETWEEN  NEW ZEALAND POLICE Appellant

ANDM

Respondent

Hearing:         31 October 2006

Appearances: Nicola Graham for Appellant

Douglas Rishworth for Respondent

Judgment:      31 October 2006

JUDGMENT OF HARRISON J

SOLICITORS

Elvidge & Partners (Napier) for Appellant

Rishworth Wall & Mathieson (Gisborne) for Respondent

POLICE V M HC GIS CRI-2006-416-8  31 October 2006

[1]      On 17 March 2006 in the District Court at Gisborne, Judge Stanley Thorburn dismissed one charge of driving with excess blood alcohol laid by the police against Mr M  .

[2]      The police requested the Judge to state a case for the opinion of this Court in these terms:

Was I correct in dismissing the information notwithstanding evidence that the defendant had in fact elected to provide a blood sample within the ten minutes that the prosecution relied upon, when I found that in the circumstances there was no evidence upon which I was prepared to rely to be sure when the ten minute period could be taken as having begun (or ended)?

[3]      The appeal was set down  for hearing today.   Both counsel – Ms Nicola Graham for the police and Mr Douglas Rishworth for Mr M   – filed comprehensive synopses of submissions.  In the result, Mr Rishworth has effectively conceded the police argument.  He accepts Ms Graham’s submission that if a person elects to give a blood specimen within 10 minutes of being advised of a positive evidential breath test, a police officer is not required to wait for the expiry of the whole period before proceeding further: s 70A(1) and s 77(3)(a) Land Transport Act

1998; Police v Irwin (1990) 6 CRNZ 171.

[4]      Accordingly, I allow the appeal.   The charge of driving with excess blood alcohol is reinstated.  I remit the proceeding for determination by Judge Thorburn in a manner and on a date to be fixed by the District Court.  It will be for the Judge to determine whether he requires further evidence, given Mr Rishworth’s advice that the only issue for determination is one of credibility, or whether he is prepared to determine the charge based only on supplementary written or oral submissions.

[5]      The police do not seek costs.

Rhys Harrison J