Police v McGrath - [2013] NZCA 3

IN THE COURT OF APPEAL OF NEW ZEALAND

CA375/2012
[2013] NZCA 3

BETWEEN NEW ZEALAND POLICE
Appellant

AND SIMON MCGRATH
Respondent

CA463/2012

AND BETWEEN SIMON MCGRATH
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 31 October 2012

Court: Arnold, Randerson and Wild JJ

Counsel: A J Haskett for Mr McGrath
A Markham for the Crown

Judgment: 7 February 2013 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal by the police in CA375/2012 is allowed.
BThe conviction entered against the respondent in the District Court, but quashed by the High Court, is reinstated.
CThe sentence imposed on the respondent in the District Court is also reinstated.
DThe cross-appeal by Mr McGrath in CA463/2012 is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

The ultimate question on these appeals is whether the conviction of the respondent and cross-appellant, Mr McGrath, for drink driving, should be reinstated.
Mr McGrath was convicted of driving with excess alcohol in his blood by Judge Davis in the District Court at Auckland on 22 November 2010, following a defended hearing in September that year.[1]
[1] New Zealand Police v McGrath DC Auckland CRI-2009-004-10972, 22 November 2010.
Mr McGrath appealed successfully to the High Court. In a judgment he delivered on 20 December 2011, Allan J quashed Mr McGrath’s conviction. [2]
[2] McGrath v Police HC Auckland CRI-2011-404-110, 20 December 2011.
The police sought leave to appeal further to this Court on two questions of law. Mr McGrath responded by applying for leave to cross-appeal on four questions of law. Allan J heard the two leave applications together on 3 April 2012. In a second judgment delivered on 15 May 2012 he granted leave to appeal on the following questions of law:[3]
[3] Police v McGrath (No 2) [2012] NZHC 1018 at [30]–[31].

On the police application

(1)Was the blood specimen in this case taken in accordance with normal medical procedures in terms of ss 2 and 73 of the Land Transport Act 1998 (the LTA)?
(2)If not, should the evidence be excluded as a matter of law?

On Mr McGrath’s application

(3)Was Mr McGrath’s blood taken in breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA)?
(4)If so, is exclusion the proportionate remedy under s 30 of the Evidence Act 2006?
(5)Is non-compliance with s 77(3)(a) of the LTA a defence to a charge of driving with excess blood alcohol brought pursuant to s 56(2) of that Act?
(6)Should the prosecution in this case have been dismissed or stayed as a matter of law, as a result of the answers to questions (3), (4) or (5)?

(We have re-numbered these issues sequentially.)

Factual background

In the very early hours of 24 April 2009 Mr McGrath was stopped at a random checkpoint established by the police on Tamaki Drive in Auckland. He failed the breath screening and evidential breath tests, and elected to give a blood specimen, which was taken in the “booze bus” parked at the checkpoint. On analysis…

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 McGrath

Details

AGLC: Police v McGrath [2013] NZCA 3
Case: [2013] NZCA 3
Decision Date: 7 February 2013

CaseChat Overview and Summary

In Police v McGrath, the Court of Appeal of New Zealand addressed the legality of a blood specimen taken from Mr McGrath, a defendant accused of drink driving. The primary legal issues involved whether the blood specimen was taken in accordance with normal medical procedures under the Land Transport Act 1998 and whether the breach of such procedures warranted exclusion of the evidence under the New Zealand Bill of Rights Act 1990 and the Evidence Act 2006. The Court concluded that the blood specimen was indeed taken in accordance with normal medical procedures, as the evidence did not substantiate the claim of an unstable environment affecting the procedure. Consequently, the Court ruled that there was no need to address whether the evidence should be excluded as a matter of law. The Court also found that the taking of Mr McGrath's blood did not breach his rights under the New Zealand Bill of Rights Act 1990, and that non-compliance with a statutory requirement to advise the defendant of a positive breath test result was not a defence to a charge of driving with excess blood alcohol. The Court allowed the police's appeal, reinstated the conviction and sentence from the District Court, and dismissed Mr McGrath's cross-appeal.

Orders