Pope v Police - [2012] NZHC 1

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000391 [2012] NZHC 1

KENNETH JOHN POPE
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 5 December 2011

Appearances: N M Silich for the Appellant
H W Yiu for the Respondent

Judgment: 10 January 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 10 January 2012 at 2.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: N M Silich P O Box 33379 Takapuna North Shore City 0740 for the Appellant

Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140 for the Respondent

POPE v POLICE HC AK CRI-2011-404-000391 10 January 2012

[1] After a defended hearing in the District Court, the appellant, Mr Pope, was found guilty on 20 June 2011 of one count of driving with excess breath alcohol (third or subsequent), contrary to s 56 of the Land Transport Act 1998. He now appeals against the conviction.

[2] The District Court found that on 2 July 2010, Mr Pope drove with an excess breath alcohol level of 563 micrograms of alcohol per litre of breath. Mr Pope maintains that the breath test administered was unreliable, as it was affected by his use of an asthma inhaler that contained ethanol, which in turn forms a defence of involuntariness: see O’Neill v Ministry of Transport [1985] 2 NZLR 513 (HC).

[3] In order to carry out the evidential breath tests, Mr Pope was required to walk from his motor vehicle, up a hill, to the police bus where these tests are carried out. Mr Pope states that the walk aggravated his emphysema and required him to use his inhaler.

[4] Constable Wakeham, who was the police constable who apprehended Mr Pope, stated that he did not notice that Mr Pope was out of breath during the walk to the police bus, and that the first time he became aware of Mr Pope using his inhaler was after Mr Pope had completed the first evidential breath test. When they reached the bus, two evidential breath tests were administered. The reading of the first test was 563 micrograms of alcohol per litre of breath, which was approximately the expected level, given that Mr Pope had admitted to consuming approximately four beers. It is not disputed that Mr Pope used his inhaler before the second breath test. This test gave a reading of 1,800 micrograms of alcohol per litre of breath (which was clearly wrong). The police accept that the second breath test would have been influenced by Mr Pope‟s use of his inhaler. They maintain, however, that the first evidential breath test is accurate and properly supports the conviction entered against him.

[5] There was a dispute about the length of time between the two evidential breath tests. Mr Pope said that the second test was administered approximately
10 minutes after the first test; whereas Constable Wakeham said that it was

administered two minutes after the first…

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 Pope v Police

Details

AGLC: Pope v Police [2012] NZHC 1
Case: [2012] NZHC 1
Decision Date: 10 January 2012

CaseChat Overview and Summary

The case of Pope v Police involves an appeal by Mr Pope against his conviction for driving with excess breath alcohol, as found by the District Court. The conviction was based on a breath test result of 563 micrograms of alcohol per litre of breath, which was obtained after Mr Pope walked from his vehicle to the police bus where the test was conducted. Mr Pope contends that the breath test was unreliable due to his use of an asthma inhaler containing ethanol, which could potentially skew the breath alcohol reading. The police acknowledge that the second breath test, which showed an unreliably high reading of 1,800 micrograms of alcohol per litre of breath, was indeed influenced by the inhaler.

The legal issues before the High Court were whether the District Court properly assessed the evidence regarding Mr Pope's use of the inhaler before the first breath test and whether the failure to cross-examine Mr Pope on this point rendered the conviction unsafe. The court found that the District Court's conclusion that there was insufficient evidence regarding the inhaler's alcohol content or Mr Pope's use of it was flawed. Given that the second breath test was clearly influenced by the inhaler, it must be accepted that the inhaler contained alcohol that could affect the breath test results. Furthermore, the police officer's evidence did not unequivocally exclude the possibility that Mr Pope used the inhaler before the first breath test. Additionally, the failure to cross-examine Mr Pope on his use of the inhaler before the first test meant that the District Court did not have a proper opportunity to assess this conflict in the evidence. This omission meant the conviction could not be supported beyond reasonable doubt.

Consequently, the High Court allowed the appeal and set aside the conviction. The court emphasised the importance of properly assessing conflicting evidence and the necessity for the prosecution to challenge key aspects of a defendant's evidence through cross-examination. The failure to do so in this case undermined the reliability of the evidence and the safety of the conviction.

Orders