Porteous v Police - [2013] NZHC 2539

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000230 [2013] NZHC 2539

BETWEEN
STUART GORDON PORTEOUS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 September 2013
Counsel:	Z K Mohamed for Appellant K C Francis for Respondent
Judgment:	30 September 2013

JUDGMENT OF COLLINS J

Introduction

[1] Mr Porteous appeals his conviction for driving with excess breath alcohol. [2] The questions I have to consider are:
(1)Whether there was sufficient evidence to enable the District Court Judge to conclude Mr Porteous had not exercised his right to have a blood test.

(2)Whether the police constable’s evidence on this issue was contradictory.

(3)Whether the District Court Judge gave sufficient reasons for finding against Mr Porteous on the first two issues.

PORTEOUS v NEW ZEALAND POLICE [2013] NZHC 2539 [30 September 2013]

(4)Whether the police prosecutor conducted his cross-examination of Mr Porteous in a way which materially undermined Mr Porteous’s right to a fair trial.

Background

[3] On 8 September 2012 Constable Whitefield observed a vehicle driven by Mr Porteous turning sharply into a side street just before a checkpoint. Breath test procedures found Mr Porteous’s breath contained 809 micrograms of alcohol per litre of breath. Mr Porteous admitted consuming ten bottles of beer prior to driving. Mr Porteous was then given 12 minutes to consider whether or not he wished to have a blood test. Mr Porteous claims he told Constable Whitefield that he wanted to undergo a blood test. Constable Whitefield disagrees and says Mr Porteous did not elect to undergo a blood test.

[4] On 8 July 2013 Judge Fitzgerald convicted Mr Porteous of driving with excess breath alcohol.1

The conflicting accounts

[5] Constable Whitefield’s account of events was that after failing his first breath test Mr Porteous accompanied the constable to an alcohol bus to give an evidential breath test and/or blood test. At the roadside Mr Porteous received an explanation of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA) and indicated he understood that advice. Mr Porteous and Constable Whitefield then entered the bus. At the front portion of the bus a breath test procedure sheet was filled out and Mr Porteous signed a form saying that he had received his advice under the NZBORA and that he did not want to consult a lawyer. An evidential breath test was given and produced the reading of 809 micrograms of alcohol per litre of breath. Constable Whitefield then again read Mr Porteous’s rights under the NZBORA and while Mr Porteous said he understood those rights he refused to sign the form. While this was happening Mr Porteous was talking to his friends on the footpath. Constable Whitefield then advised Mr Porteous that he had the right to elect a blood test within a ten minute period. Constable Whitefield kept notes of this.

1 Land Transport Act 1998, s 56(1).

[6] When the ten minute period for electing a blood test started Mr Porteous got out of the bus and stood with his friends…

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 Porteous v Police

Details

AGLC: Porteous v Police [2013] NZHC 2539
Case: [2013] NZHC 2539
Decision Date: 30 September 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Stuart Gordon Porteous appeals against his conviction for driving with excess breath alcohol. The central issue for the Court was whether there was sufficient evidence for the District Court Judge to conclude that Mr Porteous did not exercise his right to have a blood test. The court also needed to determine whether the police constable's evidence on this issue was contradictory, if the District Court Judge provided sufficient reasons for his conclusions, and whether the police prosecutor's conduct during cross-examination materially undermined Mr Porteous's right to a fair trial.

The court found that Constable Whitefield's account was consistent and that Judge Fitzgerald had sufficient evidence to conclude that Mr Porteous did not request a blood test. The court emphasised that the District Court Judge had the advantage of seeing and hearing witnesses during the trial, which aids in assessing credibility. The court also determined that Judge Fitzgerald provided adequate reasons for his findings, particularly regarding the credibility assessments of Constable Whitefield and Mr Porteous. Finally, the court held that the police prosecutor's cross-examination did not infringe on Mr Porteous's right to a fair trial as the prosecutor was not suggesting that Mr Porteous had a motive to lie merely to avoid conviction.

The appeal was dismissed, affirming the conviction of Stuart Gordon Porteous for driving with excess breath alcohol.

Orders