R v Beck - [2008] NZCA 283

IN THE COURT OF APPEAL OF NEW ZEALAND
CA214/2008
[2008] NZCA 283
THE QUEEN
v
NIGEL BECK
Hearing:30 July 2008

Court:Ellen France, Gendall and Miller JJ
Counsel:F P Hogan for the Appellant

A M Powell for Crown

Judgment:6 August 2008 at 2.30 pm

JUDGMENT OF THE COURT

A THE APPEAL IS DISMISSED.
BThe appellant’s disqualification will commence on 6 August 2008 at midnight.

____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Introduction
[1]       Mr Beck was convicted in the District Court at Manukau of driving with a blood alcohol level of 213 milligrams of alcohol per 100 millilitres of blood, having previously been convicted on at least two occasions of offences under ss 56(1), 56(2), 58(1), or 60(1) of the Land Transport Act 1998. The offence occurred on 1 July 2006. He elected trial by jury, but subsequently applied for an order that the trial be held before a Judge alone. It was eventually heard by Judge Blackie on 7 March 2008, with a reserved judgment being delivered on 16 April: DC MAN CRI-2006-092-013811.
The narrative
[2]       The Judge heard evidence from Constable Pukeiti, who apprehended Mr Beck, and a nurse, Margaret McGregor, who took the blood sample. The constable’s evidence established that the appellant had gone to some effort to disrupt the procedure, beginning when he was stopped at about 1.35am at the East Tamaki Road off-ramp from the Southern Motorway. He declined to give his name and address when asked to undergo a passive breath test, and moved his head away from the device. Nonetheless, the constable obtained a “fail general” result. He required that the appellant undergo a breath screening test which also returned a “fail general” result.
[3]       The constable then required the appellant, at about 1.39am, to accompany him to the Ellerslie Police Station for an evidential breath test, a blood test, or both. The appellant was told of his rights when he was required to accompany the officer, and again at the police station where he signed a form acknowledging that he had been told he had the right to consult and instruct a lawyer without delay and in private. The form also explained that a telephone would be made available for that purpose as soon as practicable and before he underwent a test, that he would be given a reasonable time to consult a lawyer, and that if he did not have his own lawyer a list of on-call lawyers would be provided; those lawyers were available to give advice free of charge.
[4]       The appellant indicated that he wished to speak to Mr Hogan, and asked the constable to ring him. The appellant did not have Mr Hogan’s telephone number, so the constable went through the White Pages and there found Mr Hogan’s name prominently displayed as a boxed entry for Frank Hogan, Barrister, giving both landline and cellphone numbers. The constable twice rang both numbers but received no answer, then handed the telephone to the appellant and asked if he…

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 R v Beck

Details

AGLC: R v Beck [2008] NZCA 283
Case: [2008] NZCA 283
Decision Date: 6 August 2008

CaseChat Overview and Summary

In the case of R v Beck, the appellant, Mr Beck, was convicted of driving with a blood alcohol level above the legal limit and faced disqualification from driving. The appeal against his conviction and sentence was heard by the Court of Appeal of New Zealand. The central issues revolved around whether the police adequately facilitated access to the appellant's nominated lawyer, the officer's jurisdiction to require a blood sample after offering the appellant a choice, the practicability of taking the blood sample at the initial police station, potential undue delay in processing, and whether the appellant should have been charged with refusal to give a blood sample.

The court examined the procedural rights of the appellant, affirming that the constable had taken reasonable steps to ensure Mr Beck's right to legal counsel was not infringed. Despite the constable not calling the home number listed in the phone book, the court found that Mr Beck was adequately informed of his rights and provided multiple opportunities to contact his lawyer. The court further clarified that the officer's error in offering the choice to undergo a blood test did not preclude him from requiring the sample, as the statutory power to do so was discretionary. Regarding the practicability of taking the blood sample at the initial police station, the court concluded that the police had not sufficiently demonstrated that it was not practicable, thereby finding a breach of the statutory requirement. However, the court found that the delay caused by transporting the appellant to another location was reasonable and did not prejudice the appellant. Lastly, the court held that Mr Beck had no right to be immediately charged with refusal to give a blood sample; rather, he could be asked again if he consented to the test.

Ultimately, the Court of Appeal dismissed the appeal, upholding the conviction and sentence. The disqualification from driving was set to commence on 6 August 2008, at midnight.

Orders