R v Harrison - [2015] NZCA 484

IN THE COURT OF APPEAL OF NEW ZEALAND

CA93/2015
[2015] NZCA 484

BETWEEN	THE QUEEN Appellant
AND	MATTHEW WILLIAM HARRISON Respondent

Hearing:	9 September 2015
Court:	Ellen France P, Harrison and Winkelmann JJ
Counsel:	M D Downs and J D Slankard for Appellant C S Withnall QC for Respondent
Judgment:	13 October 2015 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe conviction for driving with excess blood alcohol causing death, entered against the respondent in the District Court but quashed by the High Court, is reinstated.
CThe sentence of two years, four months’ imprisonment, two years’ disqualification from holding or obtaining a driver’s licence, and payment to the victim’s daughters of $5,000, imposed on the respondent in the District Court, is also reinstated.
DMr Harrison is ordered to surrender himself to the Customer Service Counter at the Christchurch District Court at 10 am on Friday 16 October 2015.

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REASONS OF THE COURT

(Given by Winkelmann J)

Mr Harrison was convicted of one charge of driving with excess blood alcohol causing death, following a defended hearing in the Christchurch District Court.[1] He had defended the charge on the basis that he was a passenger, not the driver of the car, and also on the basis that the requirements of s 73 of the Land Transport Act 1998 (the Act) had not been followed when an evidential blood specimen was taken at the hospital.
[1]Police v Harrison DC Christchurch CRI-2013-061-363, 23 April 2014 [District Court decision].
Mr Harrison was sentenced to two years, four months’ imprisonment, disqualified from holding or obtaining a driver’s licence for a period of two years and ordered to pay reparation to the family of the victim.[2] He appealed his conviction to the High Court, on the grounds that District Court Judge Garland had been wrong to find that the evidential blood specimen had been taken in reasonable compliance with the requirements of s 73 of the Act and also that he had been wrong to find that the police had proved beyond reasonable doubt that Mr Harrison was the driver.[3]
[2]Police v Harrison DC Christchurch CRI-2013-061-363, 11 July 2014.
[3]Harrison v Police [2014] NZHC 3126 [High Court decision].
In the High Court Whata J rejected the ground of appeal that it was not reasonably available to the District Court Judge to find that Mr Harrison was the driver of the vehicle involved in the accident causing the death of the victim. However, he allowed the appeal on the first ground. He held that the specimen had not been taken by the doctor in “immediate charge” of Mr Harrison’s care, as required by s 73(3) of the Act, and that the prosecution could not invoke the reasonable compliance provisions of s 64(2) of the Act, which provides it is no defence that certain provisions have not been complied with if there is reasonable compliance.
Whata J granted leave to appeal on the following questions of law:[4]
1Was I correct to…

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 Harrison

Details

AGLC: R v Harrison [2015] NZCA 484
Case: [2015] NZCA 484
Decision Date: 13 October 2015 at 10 am

CaseChat Overview and Summary

In this appeal, the appellant, the Queen, sought to overturn a decision of the High Court which quashed a conviction of the respondent, Matthew William Harrison, of driving with excess blood alcohol causing death. The respondent had been convicted in the Christchurch District Court and had appealed to the High Court, which quashed his conviction on the basis that there had been a failure to comply with statutory requirements when a blood specimen was taken from him at Christchurch Hospital. The Crown then appealed to the Court of Appeal on two grounds of appeal, which were certified by the High Court. The first was whether the High Court Judge was correct to hold that the doctor who took the blood specimen was not the medical practitioner in immediate charge of the respondent at the time the specimen was taken. The second was whether the High Court Judge was correct to hold that strict non-compliance with s 73(3) of the Land Transport Act 1998 was not curable by recourse to the "reasonable compliance" proviso in s 64(2) of the Act. In allowing the appeal the Court of Appeal found that the High Court Judge was not correct to hold that the doctor who took the blood specimen was not the medical practitioner in immediate charge of the respondent at the time the specimen was taken. It therefore did not need to address the second ground of appeal. The conviction of the respondent for driving with excess blood alcohol causing death, which had been quashed by the High Court, was reinstated. The sentence of two years, four months’ imprisonment, two years’ disqualification from holding or obtaining a driver’s licence, and payment to the victim’s daughters of $5,000, imposed on the respondent in the District Court, was also reinstated. The respondent was ordered to surrender himself to the Christchurch District Court on 16 October 2015.

Orders