R v Keen - [2016] NZHC 373

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-425-000001 [2016] NZHC 373

THE QUEEN

v

RILEY JAMES KEEN

Hearing: 29 February 2016

Appearances:

J Mildenhall for Crown
W N Dawkins for Defendant

Judgment:

7 March 2016

JUDGMENT OF DUNNINGHAM J

[1] At around 2.30 am on 29 September 2014, Mr Keen was stopped by police on Kawarau Road in Queenstown. He admitted that he had been drinking and Constable Claire Frooms administered a breath screening test. He failed that, so was taken to the Queenstown Police Station for testing.

[2] At the Police Station he undertook an evidential breath test which gave a reading of 614 micrograms of alcohol per litre of breath. He was informed of the positive result and advised of his right to have an evidential blood test and of the fact that he must request one within 10 minutes. He was also advised of his right to obtain legal advice but, despite three attempts to contact a lawyer, he was unsuccessful.

[3] At that point he said he elected to have a blood test. He was reminded of his ability to have a full 10 minutes to think about it, but Mr Keen confirmed he wanted

R v KEEN [2016] NZHC 373 [7 March 2016]

to go ahead with the evidential blood test. Constable Frooms promptly contacted a medical practitioner to make arrangements for administering the blood test. The result of the blood test recorded him as having 159 micrograms of alcohol per 100 millilitres of blood. The legal limit was 80 micrograms. The police subsequently charged Mr Keen with driving with excess blood alcohol.

[4] In the District Court at Queenstown, Judge Farnan decided that the prosecution had failed to establish, to the requisite standard, that Mr Keen had been afforded the statutory 10 minute period to contemplate whether he wished to have an evidential blood test or not. She also determined that this failure was not able to be overcome by the “reasonable compliance” provision in s 64 of the Land Transport Act 1998 (LTA). As a consequence, she dismissed the charge under s 147 of the Criminal Procedure Act 2011 (CPA).

The appeal

[5] The Crown seeks leave to appeal the decision of the District Court on the following questions of law:

(a) Did the Judge err by holding that a person cannot make a valid election to undergo a blood test under s 70A(1) of the LTA before the
10 minute period in which to consider whether to have a blood test is given; and

(b)Did the Judge err in applying s 64 of the LTA (the reasonable compliance provision) only in respect of whether the officer conveyed to Mr Keen that the 10 minute period had started and by failing to take into account that Mr Keen had confirmed to the officer that he wished to undergo a blood test.

[6] The appeal is brought under s 296 of the CPA. That provides that where a person has been charged…

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 Keen

Details

AGLC: R v Keen [2016] NZHC 373
Case: [2016] NZHC 373
Decision Date: 7 March 2016

CaseChat Overview and Summary

Riley James Keen appeals against his conviction and sentence for driving with excess blood alcohol. The appeal is brought pursuant to s 296 of the Criminal Procedure Act 2011. The appeal raises two questions of law: (a) whether the District Court Judge erred in holding that a person cannot make a valid election to undergo a blood test under s 70A(1) of the Land Transport Act 1998 before the 10-minute period in which to consider whether to have a blood test is given; and (b) whether the District Court Judge erred in applying s 64 of the LTA (the reasonable compliance provision) only in respect of whether the officer conveyed to Mr Keen that the 10-minute period had started and by failing to take into account that Mr Keen had confirmed to the officer that he wished to undergo a blood test. The appeal was allowed. The 10-minute period is not a precondition to making a valid election to have a blood test. The 10-minute period is intended to allow a driver to make an informed decision about whether to request a blood test. In this case, Mr Keen made a valid election to have a blood test within 10 minutes of being advised of the positive evidential breath test result. The Judge erred in failing to apply the correct test for reasonable compliance. The correct test requires consideration of the extent of non-compliance, and whether it gives rise to a reasonable doubt about the correctness of the result, and whether there is a risk of the defendant suffering injustice or unfairness. The Judge failed to consider whether there was a risk of the defendant suffering injustice or unfairness. Here, Mr Keen obtained the benefit of the blood test and there was no prejudice to him. The appeal is allowed and the case is remitted to the District Court for further proceedings.

Orders