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Police v Tolich

Police v Tolich

Case [2003] NZCA 134 3 July 2003

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA119/03

POLICE

v

IRENA LOUISE TOLICH

CA120/03

POLICE

v

ANDREW THOMAS HUNT

Hearing:3 July 2003

Coram:Gault P
Keith J
Anderson J

Appearances: J C Pike for Police

Z K Mohamed for both Respondents

Judgment:3 July 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]        These are appeals brought by special leave under s144 of the Summary Proceedings Act 1957 from decisions of the High Court allowing appeals against summary conviction in the District Court on informations alleging driving with excess breath alcohol contrary to s56(1) of the Land Transport Act 1998. In each case the driving in question occurred in the year 2002 when the administration of the evidential breath testing and optional blood testing regime affected by s9(1)(b) of the Land Transport (Road Safety Enforcement) Amendment Act 2001 had come into force. The purpose of the amending act was to remove the defence of error or possible error in the result of an evidential breath test and ensure that an evidential breath test is conclusive subject to safeguards for the protection of the rights of defendants. Before the amendment a driver who had been required to take an evidential breath test and whose test result was between 400 micrograms and 600 micrograms per litre of breath had a statutory right to elect the taking of a blood test. The right was not available to persons whose test result exceeded 600 micrograms per litre of breath.

[2]        One of the statutory safeguards introduced with the new regime of conclusive breath testing was a right to elect a blood test in any case where the breath test result exceeded 400 micrograms per litre of breath.

[3]        Both before and after the introduction of the amendments a defendant entitled to elect a blood test had to be informed that the result of the evidential breath test was positive and what the consequences would be if the subject did not request a blood test within ten minutes. The present provision, s77(3) of the Land Transport Act is in these terms:

(3)     Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—

(a)     The person who underwent the test is not advised by an enforcement officer, without delay after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,—

(i)     In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be conclusive evidence to lead to that person's conviction for an offence against this Act; or

(ii)     In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 150 but does not exceed 400 micrograms of alcohol…

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 Tolich

Details

AGLC: Police v Tolich [2003] NZCA 134
Case: [2003] NZCA 134
Decision Date: 3 July 2003

CaseChat Overview and Summary

These appeals by the Police were brought under section 144 of the Summary Proceedings Act 1957 from decisions of the High Court allowing appeals against summary conviction in the District Court for driving with excess breath alcohol. The appeals centred on the interpretation and application of section 77(3) of the Land Transport Act 1998, which was amended by the Land Transport (Road Safety Enforcement) Amendment Act 2001 to make evidential breath test results conclusive unless a blood test was requested within ten minutes. The respondents argued that the Police failed to comply with section 77(3) by using the term "sufficient evidence" instead of "conclusive evidence" on the standard advice form given to drivers who tested positive for alcohol. The central legal issue was whether this failure rendered the breath test results inadmissible and entitled the respondents to an acquittal.

The Court of Appeal considered the arguments presented by both parties. The Police argued that the use of the word "sufficient" instead of "conclusive" did not significantly alter the meaning conveyed to the driver and that the reasonable compliance provisions of section 64(2) of the Land Transport Act should apply. The respondents, on the other hand, contended that the distinction between "sufficient" and "conclusive" was crucial and that the failure to use the correct term amounted to non-compliance with section 77(3), necessitating an acquittal.

The Court of Appeal concluded that the use of "sufficient evidence" in lieu of "conclusive evidence" did not preclude the application of section 64(2). The Court found that the phrases "The test could of itself be sufficient evidence" and "The test could of itself be conclusive evidence" were cognitively identical and conveyed the same conditional meaning. The Court emphasized the need for a liberal approach to the reasonable compliance section, as previously stated in Shaw v Police. Since there was no objective basis for concern that the respondents were prejudiced by the incorrect term, the Court held that the Police's failure to use the correct wording did not render the breath test results inadmissible.

Consequently, the Court allowed the appeals, holding that the use of "sufficient evidence" instead of "conclusive evidence" did not preclude the application of section 64(2). The Court remitted the case of Mr. Hunt to the High Court for entry of a judgment dismissing the appeal from the District Court. In the case of Ms. Tolich, the Court quashed the order allowing the appeal to the High Court and directed that the High Court give judgment on that appeal, considering the undetermined grounds advanced by the appellant in light of the Court of Appeal's decision. There was no order as to costs.

Orders